05-6309-cv

Zellner v. Summerlin

UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2

- - - - - - 3 August Term, 2006 4 (Argued: February 23, 2007 De cided: July 20, 2007) 5 6 Docket No. 05-6309-cv 7

_________________________________________________________ 8 JOHN ROBERT ZELLNER, 9 Plaintiff-Appellant , 10

- v. - 11 ROBERT G. SUMMERLIN, TROOPER, and MAJOR WEBER, 12 Defendants-Appellees , 13 STATE OFNEWYORK, NEW YORK STATE POLICE DEPARTMENT, 14 and JOHN DOES 1-10, 15 Defendants . 16

_________________________________________________________ 17 Before: KEARSE, CABRANES, and KATZMANN, Circuit Judges . 18 Appeal froma judgment of the United States District Court 19 for the Eastern District of New York, Sandra L. Townes, Judge , (1) 20 grantingjudgment as a matter of law in favor of defendants21 appellees on plaintiff's false arrest and malicious prosecution 22 claims, following a jury verdict in pl aintiff's favor on those 23 claims, and (2) denyingplai ntiff's motion for a new trial on his 24 excessive force claim following a jury verdict in defendants' favor 25 on that claim. See 399 F.Supp.2d 154 (2005). 26 Reversed in part and remanded; affirmed in part. 27- 2 - SCOTT A. KORENBAUM, New York, New York 1 (Frederick K. Brewington, Hempstead, New York, 2 on the brief), for Plaintiff-Appellant . 3 RICHARDDEARING, Assistant Solicitor General, 4 NewYork, New York (Eliot Spitzer, Attorney 5 General of the State of New York, Michael S. 6 Belohlavek, Senior Counsel, Mariya S. Treisman, 7 Assistant Solicitor General, Charleen Hsuan, 8 Legal In tern, New York, New York, on the 9 brief), for Defendants-Appellees . 10

KEARSE, Circuit Judge : 11 PlaintiffJohn Robert Ze lln er appeals from a final 12 judgment of the United States District Court for the Eastern 13 District of New York, Sandra L . T ownes, Judge , dismissing his 14 claims, brought under 42 U.S.C. § 1983, against defendants Robert G. 15 Summerlin and Thomas Weber (collectively "defendants"), as members 16 of the New York State Police ("State Police"), for false arrest, 17 malicious prosecution, and use of excessive force during arrest. 18 F ollowingjury verdicts awarding Zellner a total of $85, 500 i n 19 compensatoryandpunitive damages on the false arrest and malicious 20 prosecution claims, the district court granted defendants' motion 21 pursuant to Fed. R. Civ. P. 50(b) for j udgment as a matter of law 22 dismissingthose claims on the ground of qualified immunity. On 23 appeal, Zellner contends principally that, in granting judgment as 24

a matter of law, the district court impermissibly decided questions 25 of fact. He also contends that the jury's verdict in favor of 26 defendants on his excessive force claim should have been set aside, 27 anda new trial granted on that claim. Because we conclude that, in 28 grantingjudgment as a matter of law, the distr ict court erred by 29

m akingfactual findings adversely to Zellner, rather than vie win g 30- 3 -

the record in the light most favorable to him, we reverse so muchof 1 the judgment as dismissed Zellner's false arrest and malicious 2 pr osecut ion claims; we remand for entry of an amended judgment 3 reinstating the jury's awards of compensatory and punitive damages 4

on those claims. We affirm so muchof the judgment as dismissed the 5 excessive force claim. 6

I. BACKGROUND 7

The present action arise s out of a February 25, 2000 8 demonstratio n pr otesting the construction of a new housing 9 development called Parrish Pond, across a highway from the 10 ShinnecockIndian Reservation ("Shinnecock Reservation" or 11 "Reservat ion") in the Town of Southampton, New York (the "Town"). 12 Photographs introduced at tr ia l as plaintiff's exhibits ("PX") 13 showeddemonstrators holdingplacards stating, e.g. , "SacredLand," 14 "Indian Land Forever," and "Stop the Desecration." 15 Zellner, a sixty-odd-year-old adjunct professor of 16 American history at Southampton College, served as co-chair of the 17 Southampton Anti-Bias Task Force, a committee of citizens appointed 18 bythe Town to inv estigate complaints of bias and discrimination. 19 He was called to the site of the demonstration by Benjamin Haile, a 20 Shinnecock Reservation resident. 21 The scene of th e de monstration was a field area 22 surrounding a grass-and-dirt driveway leading from a paved two-way 23 public road to the Parrish Pond development construction site. 24 Troopers from the State Police were present; Weber, a major, was in 25- 4 -

charge. During the demonstration, a construction-rela ted t ruck 1 attemptedto enter the driveway and was temporarily blocked by some 2 of the protestors. Zellner was arrested and charged with disorderly 3 conduct in violation of N.Y. Penal Law ("Penal Law") § 240.20(5) 4 (McKinney2000), and resisting ar rest, in violation of N.Y. Penal 5 Law§ 205.30 (McKinney 1999). More than a year later, after over a 6 dozen cour t appearances and adjournments, the charges against him 7 were dismissed for lack of prosecution. 8

A. The Present Action 9 Zellner brought the present § 1983 action in 2002, 10 alleging, to the extent pertinent here, claims of false arrest, 11 malicious prosecution, and use of excessive force during arrest. A 12 trial was held on those claims against Major Weber and Trooper 13 Summerlin (other claims and defendants ha ving been dismissed 14 earlier). The trial produced sharply divergent versions of the 15 events leadingto Zellner's arrest. The witnesses included Zellner 16 andseveral resident s of the Shinnecock Reservation who supported 17 his version, and Major Weber, Trooper Summerlin, and several other 18 troopers who supported key elements of defendants' version. In 19 addition, a videotape, produced by a camera that had been mounted on 20 one of the State Police vehicles, was played. 21- 5 - 1. Testimony by Zellner and Reverend Davis 1 Earlyon the morning of February 25, 2000, Zellner 2 receiveda call at home from Haile, asking him to "look at a 3 situation on St. Andrew's Road, just off the reservation." (Trial 4 Transcript ("Tr.") at 340.) Zellner responded that he was involved 5 in a project; he sug gested tha t Haile instead call the other co6 chair of the Anti-Bias Task Force, but that if Haile were unable to 7 findsomeone else to help he should call Zellner again. Eventually 8 Haile called Zellner back, stating "we need you." (Tr. 341.) 9 Zellner arrived at the demonstration site on St. Andrew's 10 Roadsometime after noon and was greetedby Reverend Holly Davis, a 11 pastorat two area Presbyterian churches, who introduced him to some 12 of the protestors. For about a half- hour, Zellner received 13 information about the situation from some of the Shinnecock elders 14 andfrom Reverend Davis, lea rning that the Shinnecocks had sought 15 andbeen granted a temporary injunction against the construction 16 workand that a written restraining order was on the way. Reverend 17 Davis had been engaged in discussions with Major Weber most of the 18 day ( see id . at 47-48, 49; see also id . at 94 (testimony of Weber: 19 "The Reverend Davis was telling me all afternoon that the paperwork 20

was being signed, that it was coming. I wanted the injunction order 21 to cease work to arrive so I could calm things down."). After 22 Zellnerarrived, Davis, accompanied by a few others including a 23 79-year-oldwoman who was a Shinnecockelder, introduced Zellnerto 24 Major Weber. ( See id . at 49, 344.) 25 Zell nerand Weber shook hands, and Zellner identifie d 26 himselfas co-chair of the Anti-Bias Task Force. Zellner described 27- 6 -

his ensuing conversation with M ajor Weber--and the arrest--as 1 follows: 2 I explained that I had been called and asked to come 3 down and talk to the police and--in an effort to 4 keep things calm. 5 Q. And, sir, did he respond to you at that 6 point? 7 A. He did. He said, what--he asked me what 8 business was it of mine, and I said--I reiterated I 9 was co-chair of the Anti-Bias Task Force and that I 10 was asked by the community to make sure that he knew 11 that there was a restraining order against the work 12 goingon in th at a rea and that the--that I 13 understoodthat the restraining order was on the way 14 and would they be able to wait before they took any 15 action until the restraining order got there. 16 Q. At that point, sir, what was your demeanor? 17 Can you describe that for the jury. 18 A. My demeanor was ve ry respectful. It was 19 quiet because everybody t h ere was very solemn and 20 respectful and quiet. 21 Q. And, sir, what next happened, please. 22 A. Major Weberind icated that he knew that 23 there was a restraining order and h e said it's not 24 here yet, and I said, I understand it's no t here, 25 but I just wanted to make sure that you know it's on 26 the way, and what we're concerned about is that 27 there's an evenhanded treatment of everyone in this 28 situation. 29 Q. Did he respond to you at that point? 30 A. Well, he didn' t, and I said, [c]ould you 31 ass ure me that there will be evenhanded treatment ? 32 Andhe said, with some exciteme nt, that we had to 33 keep the road open, and I had observed that the road 34 was--the traffic was moving back and forth on the 35 road, and I said, [i]t seems that everything is 36 reasonable at this moment. 37 Q. Then what happened? 38 A. With that-- while I was literally speaking 39 to the major, just a few seconds after we had 40 actuallyshaken hands, I was grabbed frombehind and 41- 7 - pushed down and pulled backwards out of in front of 1 the major . 2 Q. And at that time, sir, didyo u [have] 3 anything in your hands? 4 A. I had--still had a coffee cup. I t hink I 5 hadput it down at some point, but I had picked it 6 backup. I had a coffee cup in my hand, as I 7 recall. That's the only thing I had in my hand. 8 Q. And, sir, at the point that you were 9 pulled, as you indicated, what next happened? 10 A. I was very roughly pulled out and my arm 11 was placed behind my back and my arm was twisted 12 extremelypainfu lly an d I looked over my right 13 shoulderand I s aid , "You're breaking my arm. 14 Please don't break my arm." 15

. . . . 16 Q. Now, sir, at that point that you said that, 17 was there any response to your statement? 18 A. Yes. 19 Q. What was the response? 20 A. The response was a much mor e se vere 21 twistingof my arm and t he w ords, "Resisting are 22 you?" And I said, "No. You're breaking my arm, 23 please don't break my arm." 24 (Tr. 344-46 (emphasis added); see also id . at 380 ("I was face-to25 face with Major Weber and I was grabbed from behind, pulled 26 backwards and down.").) 27 Zellner testified that his right arm was held at the elbow 28 while his wrist was being "turned in the way that [his] arm didn't 29 turn," and he could feel the cartilage or tendons cracking. ( Id . at 30 349.) He stated that he was als o kickedor kneed in the jaw and 31 that his left knee was either kicked or stepped on. ( See id . at 32 350.) Zel lner later learned that one of the troopers who had 33 grabbed him from behind was Summerlin. ( See id . at 346.) 34- 8 - Zellner testified that before being grabbed, he "was not 1 askedto do anything" and "was not ordered to do anything." ( Id . at 2 453; see also id . at 381.) He "was simply grabbed from behind," 3 without any idea of whyor by whom, and was not even "told that [he] 4

was under arrest." ( Id .) Zellne r tes tified that he "didn't give 5 any resistance except verbally asking them not to injure [his] arm 6 further." ( Id . at 351.) 7 ReverendDavis testified that after she introducedZellner 8 to Major Weber, she was never more than 10 feet from Zellner before 9 he was taken away by the troopers. ( See Tr. 71, 79.) She testified 10 that before Zelln er wa s grabbed by the troopers, she did not hear 11 anyof the troopers give him an order. ( See id . at 80.) As she and 12 Zellnerand the others were all "standing there" ( id . at 50), "they 13 grab bedBob[;] . . . I called it an attack in my deposition, and 14 down on the ground he was" ( id . at 51). 15

2. The Testimony of Major Weber 16 MajorWeber testified that he had been informed by 17 ReverendDavis on February 25 that an injunction order was being 18 signed, ord ering the cessation of construction work at the site. 19 When Zelln er arr ived, Weber "was waiting for the injunction to 20 arriv e so we could put things to rest." (Tr. 94.) Weber and 21 Zellnersh ook hands, and Weber "said to Mr. Zellner, are you the 22 lawyer. He said yes." ( Id .) 23 Q. When he said yes, . . . what is the next 24 thing that you say happened? 25 A. I said to him, where is the paperwork. 26- 9 - Q. Did he respond to you? 1 A. Yes. 2 Q. What did he say? 3 A. He saidyou keep these--keep this truck out 4 of here even without the paperwork. 5 ( Id . at 95.) 6 MajorWeber testified that when he proceeded to inform 7 Zellner that trucks were coming in to refuel on-site equipment and 8 instructedone of the troopers to let the arriving truck enter, 9 Zellnersat down on the ground. ( See , e.g. , id . at 133-34, 176.) 10 Weber stated that at first he thought Zellnerha d had a heart 11 attack, but Zellner then yelled for everyone else to si t down as 12 well. ( See , e.g. , id . at 135, 176.) Weber testified that he was no 13

more than six or eight inches from Zellner at the time, and he 14 described the event as follows: 15 Q. When you were standin g th at distance from 16 Mr. Zellner, could you describe for the jury how you 17 claim he sat down? 18 A. I shook hands with Mr. Zel lner. He 19 introducedhimself. I s aid, are you the lawyer. 20 Mr. Zellner repli ed, either yes or yeah. I said, 21 where is the paperwork, meaning the injunction. He 22 startedsayingthat you should keep these trucks out 23 without the paperwork. 24

. . . . 25 I explained to Mr. Ze llne r that the truck was 26 comingin to refu el equipment so they could leave. 27 Theyalready stopped the work. They wantedto leave 28 the scene to go to other projects for th e next 29 thirtydays, construction projects. They needed 30 some of their equipment. Their purpose w as to gas 31 the equipment and leave. 32 Withthat, Mr. Zellner again said to me, you 33 shouldkeep the trucks out. I was confused. The 34 trucks were going to move out in te n or f ifteen 35- 10 - minutes. 1 With that I said to him, the trucks are coming 2 in and they [ sic ] are coming in now. And I told my 3 captain . . . [to] get these trucks [ sic ] in because 4 the trucks [ sic ] created a danger to the children 5 that were at the scene. [The captain] proceeded to 6 try to get the trucks [ sic ] in. 7 W i ththat, Mr. Zellner dropped to the ground 8 right in front of me. 9 Q. Okay. Sir, can you describe how Mr. 10 Zellner dropped to the ground? 11 A. Mr. Zel lner proceeded down. While 12 attemptingto sit down he stated, everybod ydown, 13 everybodydown. Then he either went down on his 14 backside or on his ankles. 15 Q. Sir, when you say either went down on his 16 backside o r his ankles, [you] were standing six 17 inches from him? 18 A. Yes. 19 Q. So which was it? 20 A. Either his rectum or his ankles. I am not 21 sure. 22 Q. Sir, he didn't-- 23 A. This happened in a split second. 24 Q. He didn't sit on his rectum, did he? 25 A. Either sat on his backside or his ankles. 26 Q. Sir, when this happened, tha t be ing Mr. 27 Zellner allegedly sitting down on his ankles or his 28 backside, as you indicated, were there other 29 officers standing right behind Mr. Zellner? 30 A. I don't know. 31 Q. Take a look at the picture, sir. Did their 32 position change any? You are looking at [PX] 19-A, 33 right? 34 A. This picture doe sn't tell me that Mr. 35 Zellner is going to sit down. He's standing up. 36- 11 - . . . . 1 Q. W as t he position of the officers with 2 regardto Mr. Zellner different from the point at 3 which[PX] 19-A depicts and the point at which Mr. 4 Zellner sat down on his ankles or his backside? 5 A. At the time, when Mr. Zellner dropped, I 6 didn't notice any t roo pers around him. Nor was I 7 lookingfor any troopers around him. I was 8 concernedwith Mr. Zellner sitti ng d own because at 9 first I thought he was sick. Something was 10 happening right in front of me. He was going down. 11 I w as uns ure what it was until he stated everybody 12 down, everybody down. Then I knew I had a problem. 13 (Tr. 133-36.) 14 Q. Up to this point that he began dropp ing , 15 howlong had your co n versation with the plaintiff 16 lasted? 17 A. Twenty, thirty seconds. 18 Q. When he began drop ping , what was your 19 reaction? 20 Didyou think you had probable cause of any-- 21 for an arrest of any kind? 22 A. No . . . . 23

. . . . 24 Q. Did he say anything when he was sitting 25 down? 26 A. No. 27 I thought when he started going down, this had 28 ne ver happened to me before, I thought I had 29 somebody sick on my--I thought I had a heart attack 30 on my hands. He started going down. Oka y. Then 31 when he started yelling, everybody down, everybody 32 down, I kn ew I had what we call "passive 33 resistance." He was going to sit down and try to 34 blocktraffic and he was going to try to get the 35 twenty, thirty, forty other demonstrators to follow 36 his lead, and I knew I had a problem. I had women 37 andchildren. If they started squatting in front of 38 that pickup truck, and tribal members or 39 demonstrators started gathering on that pickup 40 truck-- 41- 12 - . . . . 1

. . . I knew I had a problem. If that operator 2 attemptedthat left-hand turn, people would have 3 been hurt. 4 Q. How many times did the plaintiff yell 5 "everybody down"? 6 A. I believe, two times. Maybe three. 7 Q. Did you see anyone else sit down? 8 A. No. 9 Q. What did you do when the plaintiff sat down 10 and said "everybody down"? 11 A. I knew I had to get him. I had two 12 objectives at that point. Get him away from the 13 scene and get the trucks [ sic ] inside the driveway, 14 to defuse the situation. 15 Q. Did you say anything to the plaintiff when 16 he sat down? 17 A. I grabbed him underneath--I believe--his 18 right armpit with my left arm. I said get up. 19 Q. Did he get up? 20 A. No. 21 Q. What, if anything, was the crowd doing at 22 that point? 23 A. I heard the crowd behind m e, yelling and 24 screaming. 25

. . . . 26 Q. . . . . What did you do at that point? 27 A. When Mr. Zellner wouldn't get up, I looked 28 up andI saw two or three troopers there and I said, 29 get him o ut of here, dis con, which is disorderly 30 conduct. 31 (Tr. 176-78.) 32 At his deposition some 10 months before trial, Major Weber 33 hadbeen asked what Zellner had do ne that constituted disorderly 34- 13 -

conduct. Weber's answer hadthen been: "He sat down on a driveway 1 in a pavedportion of the road, I don't know exactlywhere, for the 2 purposes of obstructing vehicle traffic, and I determined that was 3 dis orde rlyconduct . . . ." (Tr. 144 (internal quotation marks 4 omitted).) 5

3. The Testimony of Other Troopers 6 Summerlin testified that after "someone came running down 7 the road wa[]ving their cell phone and stating that they had 8 receiveda court order" (Tr. 691), Zellner "was yelling at the 9 Major, pointing his finger[,] saying you should wait for the court 10 order, you should wait for the court order" ( id . at 693-94). At the 11 time, Summerlin testified, Major Weber was trying, in a professional 12 andbusinesslike manner, to explain that the truck was entering 13 solelyto refuel an on-site vehicle, and that the project was 14 shutting down. ( See id . at 694.) 15 Q. After Major Weber explainedwhythe truck 16 was attempting to enter a nd the plaintiff [was] 17 yellingat Major Web er a nd pointing at him, what 18 happened next? 19 A. At some point in time all I can remember is 20 that as I was looking out I heard someone say 21 everybodydown, Mr. Zellner fell do wn t o his knees 22 and folded his legs scissor fashion. 23 Q. Where were you in relation to this? 24 A. I was standing on his left side. 25 Q. What happened after the plaintiff droppe d 26 to the ground and said everybody down? 27 A. I had turned to look off towards my left 28 and I could hear the Major say get up. 29 Q. Did the plaintiff get up when the major 30- 14 - said that? 1 A. No, he left his hands, he had his legs 2 scissor fashion and his hands were on his knees and 3 his head was down. 4 Q. After the Major asked the plaintiff to get 5 up, what happened? 6 A. The major looked towards me and Trooper 7 Parker and said get him out of here dis con. 8 Q. Ge t himout of here dis con, what did you 9 understand that to mean? 10 A. That he was under arrest. 11 Q. What was he under arrest for at that time? 12 A. Disorderly conduct. 13 (Tr. 695.) 14 Trooper Kevin Drew testified that he was standing "right 15 next" to Zellner, when Zellner "all of a sudden shout[ed] . . . he 16 wanted everybody to sit down." ( Id . at 665.) 17 Q. After he shoutedfor everybody to sit down, 18 what did he do? 19 A. He sat down and nobody else did. 20 Q. Where were you when this took place? 21 A. I was behind him, just maybe four to five 22 feet away. 23 Q. What did you do after he sat down? 24 A. After he sat down, I observed the Major 25 come over and talk to him about gettin g u p and 26 moving and . . . Troopers Parker and Summerlin came 27 over too and were ne gotiat ing with him to move and 28 about letting the truck in. 29 ( Id .) Drew 's written reports of the incident did not state that 30 Zellner had shouted for others to sit down. ( See id . at 682-83.) 31 Trooper Derrick Parker testified that as Major Weber was 32- 15 -

in the driveway telling people to "let the truck come through so it 1 couldfuel up" (Tr. 630), Zellner, who was sipping coffee from a cup 2 in his hand ( see id . at 646), "was standingright in front of Major 3 Weber and he was saying something back to Major Weber, Major Weber 4 was asking him to move from the driveway" ( id . at 630-31). 5 Q. What happened after that if you remember? 6 A. Mr. Zellner said something, he just dropped 7 to the ground. 8 Q. When you say dropped to the ground, did 9 anythingthat you said cause him to d rop to the 10 ground? 11 A. No. 12 Q. Did anybody hit him or was he in contact 13 with anybody when he dropped to the ground? 14 A. No, he just dropped to the ground and sat 15 down. 16 Q. Would you describe how he dropp ed to the 17 ground, did he go backwards, to the left or right, 18 straight down? 19 A. Straight down to the ground. 20 Q. Is there any way further that you could 21 describe how he went to the ground? 22 A. No other way, he just dropped straight down 23 and sat down on his butt. 24 ( Id . at 631.) 25 Q. Sir, you said that Mr. Zellner went down on 26 his butt, correct? 27 A. Yes. 28 Q. He didn't go down on his knees, right? 29 A. No. 30 Q. And you were standing right behind him, you 31 would have seen that, right? 32- 16 - A. Yes. 1 ( Id . at 655-56.) 2 Q. Do you remember where Major Weber was? 3 A. Yes, he was in the driveway, the middle of 4 the driveway, talking to Mr. Zellner. 5 ( Id . at 632.) 6 Parker, who was "standing right behind" Zel lner ( id . at 7 656), slightly to his right ( see , e .g. , id . at 631-32, PX 19A, 8 PX 19D), did not hear Zellner yell anything to the crowd: 9 Q . Now , when Mr. Zellner went down, you said 10 nobodysaid anything to him at that po int, i s that 11 correct-- 12 Did you say anything to him? 13 A. No. 14 Q. Did anybody else say anything to him? 15 A. No. 16 Q. Did you hear Mr. Zellner say anything? 17 A. I didn't hear him say anything . . . . 18 (Tr. 652.) 19 Trooper Michael Lewis test ified that he saw Zellner and 20 Major Weber talking. He could not hear the conversation, but said 21 he saw Zellner sit down: 22 Q. After the truck began to attempt to enter 23 the dr iveway , and the people moved in front of it, 24 and Major Weber was talking, what happened next? 25 A. Around that time I obse rvedthe plaintiff 26 move into the cent er of the driveway, and then he 27 sat down after havinga discussion with Major Weber, 28 which I could not hear, he sat down. 29 Q. At the time that he sat down, were any 30 troopers in contact with him at that time? 31- 17 - A. No. 1 Q. Where specifically did he sit down; in the 2 road, the driveway or somewhere else? 3 A. Right in the middle of the driveway. 4 Q. After he sat down, what else did you 5 observe with regard to the plaintiff at that time? 6 A. I observed Troop e rs Parker and Summerlin 7 lift him and attempt to remove him from the scene. 8 (Tr. 743-44.) 9 Lewis, who did not testify that Zellner yelled anything to 10 the crowd, wrote a memorandum on the incident, which did not 11 indicate even that Zellner sat down. At no time did Lewis ever 12 report to anyone in writing that he sawZellner sit down. ( See id . 13 at 759-61.) 14

4. Testimony by Non-Troopers 15 Zellner denied that he had sat down at t he sc ene of the 16 demonstration anddenied that he had urged anyone else to do so. He 17 saidthat he had not seen the truckthat was attempting to turn into 18 the property, and that he was not even aware that there was a 19 driveway. ( See Tr. 392-93.) Asked to descr ibe what his "voice 20 level" had been "at any time before being grabbed" ( id . at 34 8), 21 Zellner testified: 22 A. My voice level was conversational andquiet 23 and respectful. 24 Q. And, sir, at the ti me that you were 25 grabbed, did you make or yell any statements to the 26 crowd? 27 A. No, I did not. 28 Q. Sir, at any point did you sit down? 29- 18 - A. No, I did not. 1 ( Id . at 348-49; see also id . at 380 ("I never did sit down"; "I 2 didn't sit down.").) Zellner testified that he did not at any point 3 yell to the crowd ( see id . at 376) and never yelled "everybody down" 4 ( id . at 381). 5 Reverend Davis, who stood no more than 10 feet away from 6 Zellnerafter she introduced him to Major Weber, testified that she 7

never heard Zellner raise his voice and never saw him attempt to sit 8 down: 9 Q. . . . . [T]ell us, please, at any point did 10 you make any observation of Mr. Zellner attempt t o 11 try and prevent police from doing anything? 12 A. No, I did not observe that at all. 13

. . . . 14 Q. When, if at all, did you see Mr. Zellner 15 sit down? 16 A. I didn't see him sit down at all. 17 Q. At any point did you see him attempt to sit 18 down? 19 A. I did not see him try to sit down. 20 (Tr. 71.) 21 Q. And was there anything obscuring your view 22 of what you saw? 23 A. No. I saw him go down . 24 Q. And can you tell the jury, did you see-- 25 what if anything was it that made him go down? 26 A. Well, yes. I saw the troopers. I counted 27 4 troopers touching him . 28 Q. And at that time what was Mr . Z ellner 29 doing? 30 A. Well, h e hada cup of coffee in his hand, 31- 19 - andso betwe en the time that the troopers had hold 1 of him and he was drinking his coffee the last time 2 I had seen him, he wasn't doing anything . 3 Q. And at any point did you hear him say 4 anything, raise his voice or in any way shout 5 anything? 6 A. Oh, no, not at all. 7 (Tr. 58 (emphases added).) 8 Gordell Wright, a resident of the Shinnecock Reservation, 9 testifiedthat he was just a few feet away from Zellner when he saw 10 two troopers grab Zellner's arms and throw him to the ground. ( See 11 id . at 317-18.) When grabbed, Ze llner was standing, doing 12 "[n]othing"; he was not seated. ( Id . at 318.) Wright had not heard 13 Zellnersay anything or yell anything to the crowd. ( See id .) When 14 the troopers grabbed Zellner, they pushed him toward the ground and 15 he fell; Zellner did not resist arrest at all. ( See id . at 328.) 16 Rebecca Genia, a resident of the Reservation who hadbeen 17 at the demonstration site the entire day, testified that she did not 18 see Zellner (whom she had not previously met) sitting down and did 19 not hear him or anyone else urge everybody to sit down. She heard 20

a "ruckus" and saw Zellner on the ground. (Tr. 235.) She then saw 21 himbein g dragged past her, screaming about his arms ( see id . at 22 237). 23 Q. At any t ime did you hear that individual 24 that you now know to be Robert Zellner say the words 25 "everybody down, everybody down"? 26 A. No. 27 Q. Did you ever hear those words on that day? 28 A. No. 29

. . . . 30- 20 - Q. At any time when you were looking in th[e] 1 direction [of Zellner being dragged away], or 2 anytime before that, did you make any observation of 3 a m an you now know to be Robert Zellner, Bob 4 Zellner, sitting down? 5 A. No. 6 (Tr. 237-38.) 7 Benjam in Haile, who had asked Zellner to come to the 8 demonstration site that morning, testified that he did not see the 9 incident involving Zellner but heard the scuffle. ( See Tr. 259-60.) 10 At the time, Haile was in the driveway, some 10 feet away from the 11 road; the scuffle involving Zellner was behind him, farther into the 12 driveway. ( See id . at 260.) 13 Q. At any point prior to hearing the scu ffl e 14 behindyou, did you hear anyone say the words 15 "everybody down, everybody down"? 16 A. No. 17 Q. Anybody say that that day? 18 A. No. 19 ( Id . at 262.) 20 Harriet Gumbs, a Shinnecock elder who was 79 at the time 21 of the demonstration, testified th at she was standing next to 22 Zellner, close enoughto touch him, when Zellner was grabbed by the 23 State troo pers. ( S ee id . at 305.) She testified that Zellner 24 neither sat down nor told anyone else to do so: 25 Q. At an y point prior to that point, ma'am, 26 did you see Mr. Zellner sit down? 27 A. No, he did not. 28 Q. At any point during that day did you see 29 Mr. Zellner sit down-- 30 A. It was too cold to si t d own. We were 31- 21 - freezing out there. 1 (Tr. 30 4-05.) Asked what Zellner "was doing with his body" jus t 2 before he was grabbed, Gumbs testified that he was "standing," not 3 "sittingor anything else." ( Id . at 306-07.) Nor did he yel l 4 "everybody down": 5 Q. . . . . Prior to h im being grabbed bythe 6 troopers, did you hear him at any point say 7 "everybody down, everybody down"? 8 A. He never, ever said that. 9 Q. Did anybody ever say that there? 10 A. No one said it. 11 ( Id . at 308.) 12 Gumbs test ified that when the troopers grabbed Zellner, 13 theyput his arms "behind his back, but they did no t do it in a 14 gentle manner, they did it like they was trying to pull him apart, 15 take his arms off of him." ( Id . at 305.) Then "[t]hey got him down 16

on the groundand they had his face almost buried in the ground. I 17 thought he was going to smother before they got up off him." ( Id . 18 at 308.) 19

5. The Videotape and Photographs 20 The video camera did not record any part of Zellner's 21 interaction with Major Weber. It was located to the north of the 22 drivewayand was pointed south at a short stretch of St . Andrew's 23 Road. The videotape shows sparse vehicular traffic on the road, 24 some pedestrian cross-traffic, and a congregation of people at the 25 west edge of the road, north of the driveway. The driveway itself-- 26 whichstill photographs show as no more than a somewhat beaten-down 27- 22 -

grass-and-dirt path leading through a field of brush and bushes 1 ( see , e.g. , PX 26C)--is not visible on the videotape. For some 10 2 minutes, according to the time-of-day dis playon the videotape, 3 Zellner is shown at the edge of the road talking to demonstrators; 4 a zoom shot during this period shows Zellner holding a coffee mug. 5 At 13:19:00, the videotape shows a pickup truck arriving, 6 signalingfor a lef t turn into the Parrish Pond development. A 7 troopergoes into the road to the truck, which begins a left turn 8 but stops as people appear to congregate around it. At about the 9

same time Zellner walks away from the road and into another crowd of 10 people, away fromthe camera, moving closer to the driveway. The 11 videotape shows Zellner, partially o bscu red, bending forward from 12 the waist at 13:19:20, straightening up at 13:19:22, bending forward 13 again at 13:19:25, and straightening up again at 13:19:26. Zellner 14 then all but disappears into the crowd, and for most of the next 15 approximatelyfour minutes, only his hat is visible on the tape. A 16 still photograph, PX 19A, which by all accounts depicts the scene 17 inside that crowd moments before Zellner began speaking with Major 18 Weber ( see , e.g. , Tr. 219, 317, 342, 648), shows Zellner (coffee mug 19 in hand) standing with Gumbs, Wright, and two other protestors, 20 surroundedby Summerlin, Parker, an d two other (unidentified) 21 troopers. No one appears to be sayi ng anything; Major Weber, his 22 side turned toward this group, is sta ndin g a few feet away from 23 Zellner. 24 At about 13:23 on the videotape, Zellner's hat disappears 25 fromview, and he is not s een ag ain on the tape for some 20-25 26 seconds. Asti ll photograph, however, PX 19D, was taken in the 27- 23 -

interim. It shows Zellner tilted backward at about a 45-degree 1 angle, with Summerlin holding his left arm, Parker holding his right 2 arm, Drew with a hand on the back side of Zellner's jacket ( see Tr. 3 67 8), and Major Weber leaning forward with his left ar m 4 outstretched, his hand on Zellner's right shoulder ( see , e.g. , id . 5 at 404). The postures of Troopers Summerlin and Parker indicate 6 that they are pulling Zellner backwards. Major Weber testified that 7 PX19D shows the troopers "escorting" Zellner awayafterhe sat down 8 in the driveway. (Tr. 138, 187.) Zellner, in contrast, testified 9 that PX 19D shows "the exact moment when [he was] unexpectedly 10 pulled from behind" and taken to the ground. (Tr. 404.) Reverend 11 Davis similarly testified that, in PX 19D, "the[ troopers] were 12 pulling [Zellner] to the ground." (Tr. 68.) 13 At about 13:23:20, the videotape shows Zellner, u prig ht 14 andwalking, being brought out through the crowd by two troopers. 15 Asubsequent still photo, PX 19C, shows Zellner prone, spread-eagle, 16

on the ground with Troopers Summerlin and Parker apparently cuffing 17 his hands behind his back, and Trooper Drew watching. 18 When Zellner was asked about the seven-second segment of 19 the videotape at 13:19:20-13:19:26, which showed him twice bending 20 forwardat the waist, he testified that he had bent first to put his 21 coffee mug down in order to button his coat or tie i ts belt, and 22 then had bent again to retrieve the mug. ( See Tr. 377-78.) Major 23 Weber, however, after having been shown that part of the videotape, 24 testified, "I'd like to call them practice runs" ( id . at 118). 25 Q. I'm sorry, sir? 26 A. I like to call it a practice run. 27- 24 -

( Id .) Shown that segment again, Weber testified that he viewed 1 Zellneras practicing sitting down and showing the demonstrators how 2 to sit down: 3 Q. Sir, we're at 13:19. The truck is there; 4 correct? 5 A. Yes. 6 Q. Mr. Zellner is still standing there? 7 A. Yes, he is. There he is. 8 Q. When yousay--we're just at 13:19, and that 9 wouldhave been 21 or 22 seconds. You're saying 10 that was a dry run? 11 A. I believe after seeing this video that was 12 a practice run on how to e ngage in passive 13 resistance, sitting down. 14 Q. Sir, when he leaned forward as though to go 15 to wha teve r in [ sic ] front of him, you're saying 16 that that is the equivalent of sitting down? 17 A. I believe-- 18 Q. Sir? 19 A. --that is the equivalent of sitting down. 20 Q. Very well. 21 A. Instruc t ing the demonstrators how to sit 22 down. 23 ( Id . at 120.) 24 The relevant part of the videotape had no sound, and hence 25 providedno evidence that anyone had shouted "everybody down." 26 Neitherthe videotape nor any of the st ill photographs showed 27 Zellner sitting. 28

B. The Rule 50(a) Motions and the Instructions to the Jury 29 Followingthe conclusion of Zellner's case, defendants 30- 25 -

movedpursuant to Fed. R. Civ. P. 50(a) for judgment as a matter of 1 law, arguing (a) that Zellner had failed to present evidence that 2 was legally sufficient to support his claims, and (b) that, in any 3 event, defendants were entitledto qualified immunity. The district 4 court denied the motion. It stated, inter alia , that the matter of 5 qualifiedimmunity n eeded to b e briefed by both sides. ( See Tr. 6 532.) And the court stated that there were factual issues to be 7 decided by the jury: 8 This case comes down to fact ual issues, either the 9 jurybelieves that the plaintiff was attacked for no 10 reason, kicked and whatever, or they believe that he 11 jump eddown on the driveway to obstruct traffic . 12 That is what the issue is going to be. 13 ( Id . a t 621.) After the close of all the evidence, defendants 14 renewedtheir Rule 50(a) motion. The court again denied the motion, 15 stating"[t]here are factual issues that have to be determined bya 16 jury." ( Id . at 767.) 17 Duringthe charging conference, at which the court and the 18 parties discussed the instructions and special-verdict questions to 19 be given to the jury, defendants requested yet again that the court 20 decide their qualified immunity defense as a matter of law: 21 MS. LEAHEY [defendants' counsel]: Your Honor, 22 as to the qualifiedimmunity issue, could you let me 23 know what your intentions are with respect to that. 24 THE COURT: Because of the factual issues, I 25 cannot make a det ermination until the jury makes a 26 determination. 27 MS. LEAHEY: Your Honor, I would take an 28 exception to that. 29 I would state that in the fi rst instance 30 qualifiedimmunity is a question of law for the 31 Court to decide

-- 32- 26 - THE COURT: It is if there are no fac tua l 1 issues . If this occurred and the jury finds that it 2 occurredthe way that the [plaintiff] say[s ] it 3 occurred, there is no immunity. 4 (Tr. 801 (emphases added).) Defense counsel argued that, for the 5 court not to rule on the qualified immunity defense and not to give 6 the jury a " qua lified immunity set of instructions," would be 7 "prejudicial for the defendants and not the law." ( Id .) The court 8 disagreed: 9 THE COURT: It is the law, because there is a 10 factual dispute here, the factual dispute has to be 11 resolvedbefore there can be a finding ofwhether or 12 not there is qualified immunity. 13 You can't do it on this record . You would not 14 get summary judgment had you had this record and 15 made this motion, because there are q uestions of 16 fact. 17 ( Id . (emphasis added).) 18 Focusingchiefly on Zellner's claim of excessi ve f orce, 19 defendants asked the court to pose to the jury the question of 20 whether"the events surrounding plaintiff's arrest, particularly 21 grabbing him, throwing him to the ground, kicking him and twisting 22 his arm occur[red] substantially as plaintiff testified." ( Id . at 23 789.) It was agreed that "as plaintiff testified" would be changed 24 to "[as] plaintiff contends," in order to encompass not just 25 Zellner's own testimony but the testimony of his witnesses as well. 26 ( Id .) The court decided that it would pose these detailed factual 27 questions individually, "because if there is a verdict here, I have 28 to make a d ecision on qualified immunity, it's only with as much 29 information about that as I can get." ( Id . at 788.) 30 Comparablydetailed questions were not, however, requested 31- 27 -

as to Zellner's conduct relating to his claims of false arrest and 1 malicious prosecution. Defendants proposed that the jury be asked 2 "d idthe defendants have probable cause to believe that plai ntif f 3

was committing disorderly conduct by obstructing vehicula r o r 4 ped estrian traffic by blocking the driveway." (Tr. 790.) The y 5 arguedthat this question "encapsulates the factual conflict in this 6 case as to false arrest, did he or did he not cause obstruction on 7 the roadway, by blocking the driveway." ( Id . at 791.) The proposed 8 question, however, was a compound question, and the court elected to 9 askthe jury simply whether defendants had probable cause to believe 10 that Zellner had committed the offense of disorderly conduct or 11

res istingarrest. Defendants did not propose any simple fact 12 questions, such as whether Zellner had blocked the driveway, or sat 13 down, or yelled "everybody down." 14 The court's instructions to the jury with respect to 15 Zellner's claims of false arrest and malicious prosecution described 16 the parties' positions, in part, as follows: 17 The plaintiff contends that his Constitutional 18 right[s] were violated when . . . . he was 19 unlawfullyarrested by the defendants for the 20 violation of disorderly conduct and the misdemeanor 21 crime of resisting arrest[] . . . . [a]nd . . . 22 when he was maliciously prosecutedby the defendants 23 for the violation and the misdemeanor. . . . 24 The defendants conten d that . . . . there was 25 probabl e caus e to arrest the plaintiff on both 26 charges [] . . . . [a]nd . . . there was probable 27 cause to prosecute the plaintiff on both charges and 28 this was done without malice. 29

. . . . 30

. . . [T]he defendants contend that the 31 plaintiffinitiated a confrontation with Major 32 Weber, dropped to the driveway, where he sat to 33- 28 - obstruct entrance to the driveway by a construction 1 truckand he incite d ot hers to block the driveway. 2 When he was to ld he was under arrest, he resisted 3 arrest by causing his body to become limp and 4 flailinghis arms and plac ing his arms under his 5 body when troopers attempted to handcuff him. 6 (Tr. 895-96 (emphases added).) 7 Withrespect to Zellner's claim of false arrest, the court 8 toldth e jury th at "the critical question for you to decide is 9 whether the arrest of the plaintiff was lawful," and that "whether 10 the arrest was lawful centers on whether the arrest was made by the 11 d efe ndants acting on probable cause to believe" that Zellner had 12 committedthe offense of disorderly conduct or resisting arrest. 13 ( Id . at 901.) The court explained, inter alia , that "[p]robable 14 cause exists when the facts and circumstances within the knowledge 15 of the police office rs at the time the arrest was made were 16 sufficient to warrant a person of reasonable pr ude nce to believe 17 that a violation or a cri me had b een committed by the person 18 arrested." ( Id . at 902.) 19 The court read the provisions of the New York disorderly 20 conduct and resisting arrest statutes under which Zellner had been 21 charged. As to § 240.20(5), the court stated: 22 "A person is guilty of disorderly conduct when with 23 intent to cause public inconvenience, annoyance or 24 alarmor recklessly creating a ri skthereof, he 25 obstructs vehicular or pedestrian traffic.["] To be 26 guiltyof disorderly conduct, the perpetrator must 27 act with intent to cause public inconvenience, 28 ann oyance or alarm or recklessly creating a r is k 29 thereof.[] 30 Inconvenience means tampering with the 31 legitimate transaction of public business. 32 Annoyance means discomfort or vexation. Alarm means 33 sudden fear. 34- 29 -

(Tr. 904.) As to resisting arrest, the court stated that 1 [s]ection 205.30 of the New York Penal law, insofar 2 as it is applicable to this case, reads as follows: 3 "Aperson is guilty of resisting arrest when he 4 intentionallyprevents or attempts to prevent a 5 police officer or a peace officer from effecting an 6 authorized arrest." 7

. . . . 8 The arrest at issue must have been made in 9 accordance with the law. Namely, that it was based 10 on probable cause. Also, resisting arrest does not 11 require that the person being arrested use force or 12 violence. It is enough if he engages in his conduct 13 withthe intent of pre venting the officer from 14 effecting the authorized arrest of himself. 15 Accordingly, on the issue of the alleged 16 Constitutional violation, making an unlawful arrest 17 for disor derl y conduct or resisting arrest, if you 18 determine that there was no probable cause to arrest 19 plaintiffon either of those charge s [and that 20 defendants' actions were a proximate cause of injury 21 to Zellner], your verdict wi ll be in favor of the 22 plaintiffand against the de fendants, as to the 23 Federal Section 1983 false arrest cause of action. 24 However, if you determine that . . . there was 25 probable cause to arrest plaintiff for either 26 disorderlyconduct or resisting arrest, then the 27 arrest would be lawful and your verd ict mu st be in 28 favorof the defendants with regard to the charge of 29 false arrest. 30

. . . . 31 Als o, as I instructed you, the fact that bo t h 32 charges against the plaintiff resulted in a 33 dismissal is not evidence that the defendants lacked 34 probable cause at the time of the arrest. 35 ( Id . at 905-06.) 36 I n inst ructing the jury with respect to the claim of 37 malicious prosecution, the court described the four elements of such 38

a claim, i.e. , initiat ion of a proceeding, termination of the 39 proceedingin the plaintiff's favor, lack of probable cause for 40- 30 -

commencement or continuation ofthe proceeding, and actual malice on 1 the part of the defendants in commencing or continuing the 2 proceeding. ( See Tr. 919-20.) The court instructed, inter alia , 3 that 4 [i]f probable caus e ex isted for the police officer 5 to commence a criminal prosecution against the 6 plaintiff . . . , then the plaintiff cannot recover 7 against the defendant who initiated the criminal 8 proceeding. 9 ( Id . at 922.) The court added: 10 I further instruct you that if you find that 11 the defendants didnot act maliciously, your verdict 12 must be in favor of the defendants on the malicious 13 prosecution claim even thoughyou find that theydid 14 not have p robab le cause to believe the plaintiff 15 committed either disorderly conduct or the crime of 16 resistingarrest that was charged. Only if youfind 17 that the plaintiff has proved both: 18 One, that the defendants did not have probable 19 cause to charge the plaintiff withei ther the 20 violation or the crime, and 21 Two, that the defendants acted with malice, 22 w ill your verdict be in favor of the plain tif f 23 against the defendants. 24 ( Id . at 923-24.) 25 The court gave instruc tion s on compensatory damages and 26 remindedthe jury that "throughout the case you are considering each 27 defendant separately and your verdict will be reported separately as 28 to each defendant." (Tr. 926.) The court also informed the jury 29 that if it fo und that Zellner was entitled to recover and further 30 foundthat a defendant had caused him injury maliciously or wantonly 31

or oppressively and deserved to be punished, it had discretion to 32 awardZellner punitive damages. ( See Tr. 928-29.) The court 33 explained that 34- 31 - [a]n act or failure to act is maliciously done 1 if prompted or acco mpanie d by ill will or spite or 2 grudge toward the injured pers on individually. An 3 act or failure to act is w[anton]ly done if done in 4 reckless or callous disregard of or indi ffer ent to 5 the rights of the injured person. An act or a 6 failure to act is oppressively done if done in a way 7 or manner w hich injur[]es or damages or otherwise 8 violates the rights of another person with 9 unnecessaryharshness or sev e rity or by misuse or 10 abuse of authority or power or b y ta king advantage 11 of some weaknesses or misfortune of another person. 12 ( Id . at 929.) The court stated, ho wever, th at the jury should 13 initiallymake a finding only as to whether punitive damages were 14 warranted, without attempting to determine an amount. ( See id .) 15

C. The Jury's Verdict 16 The jury was given a special verdict sh eet po sing 10 17 questions, most with subparts, to be answered with respect to (a) 18 the merits of Zellner's claims against each d efenda nt, (b) the 19 amount of compensatory damages, if any, that Zellner should receive 20 fromeach defendant, and (c) whether or not he should receive 21 punitive damages. As detailed below, the jury fo und in fav or of 22 Zell neron his claims for false arrest and malicious prosecuti on , 23 awarding him compensatory damages in the amount of $40,000 against 24 eachdefendant, and found that Zellner was entitled to punitive 25 damages as well; the jury foundaga inst Zellner on his claim of 26 excessive force, although it credited his evidence that defendants 27 had grabbed him and twisted his arm. 28 The precise questions posedon the special verdict sheet, 29 and the jury's findings in response, were as follows: 30 Do you find by a preponderance of the evidence: 31- 32 - 1. That the events surrounding plaintiff's arrest, 1 particularly grabbing him, throwing him to the 2 ground, and then strikinghim, kicking him, and 3 twistinghis arm occurred substantially as 4 plaintiff contends? 5 Grabbing him? Yes 6 Throwing him to the ground? No 7 Striking him? No 8 Kicking him? No 9 Twisting his arm? Yes 10 2. That defendants had probable cause to believe 11 that the plaintiff was committing the violation 12 of disorderly conduct or the crime of resisting 13 arrest? 14 Disorderly conduct? No 15 Resisting arrest? No 16

3. That the defendant's acts in falsely arresting 17 himwere the proximate cause of damages 18 sustained by the plaintiff? 19 Defendant Weber: Yes 20 Defendant Summerlin: Yes 21

4. That Defendant Weber took actions 22 to initiate or continue the criminal 23 prosecution against the plaintiff? Yes 24

5. That the defendant intentionally committed acts 25 that violated the plaintiff's federal 26 constitutional right not to be maliciously 27 prosecuted? 28 Defendant Weber: Yes 29 Defendant Summerlin: Yes 30

6. That the defendant's acts in maliciously 31 prosecutinghim were the proximate cause of 32 damages sustained by the plaintiff? 33 Defendant Weber: Yes 34 Defendant Summerlin: Yes 35 7. That the defendant intentionally used excessive 36 force against the plaintiff when 37- 33 - Arresting him? 1 Defendant Weber: No 2 Defendant Summerlin: No 3 Handcuffing him? 4 Defendant Weber: No 5 Defendant Summerlin: No 6 Taking him to the police vehicle? 7 Defendant Weber: No 8 Defendant Summerlin: No 9 8. That the defendant's acts in using excessive 10 force were the proximate cause of damages 11 sustained by the plaintiff? 12 Defendant Weber: No 13 Defendant Summerlin: No 14

INSTRUCTIONS AS TO DAMAGES 15 If your verdict is in favor of both defendants 16 o n all causes of action, do not answer the d amage s 17 questions below, cease deliberations, and the 18 for e person should sign and date the verdict sheet 19 andadvise the court by note that you are ready to 20 return to the courtroom to announce your verdict. 21 On the other hand, if you have found a verdict 22 in favor of the plaintiff on any of the causes of 23 action, please answer the appropriate damages 24 questions that follow. 25 Compensatory Damages 26 9. Please state the amount of damages, if any, you 27 awardto the plaintiff for his physical 28 injuries and his pain and suffering from 29 February25, 2000 to the present date agai nst 30 each defendant. 31 Defendant Weber: $40,000 32 Defendant Summerlin: $40,000 33 Punitive Damages 34 You are to consider the su bject of punitive 35 da m ages only with regard to a defendant or 36- 34 - defend ants you have found liable on any of the 1 causes of action. 2 10. Do you award punitive damages to the plaintiff 3 against the defendant? 4 Defendant Weber: Yes 5 Defendant Summerlin: Yes 6 (November 24, 2004 Verdict Sheet ("Special Verdict").) 7 In connection with the jury's finding that Zellner should 8

r eceive punitive damages, the trial continued for an additi ona l 9 half-dayof testimony with respect to each defendant's financial 10 condition. Following further d eliberations, the jury assessed 11 punitive damages of$5,000 against Weber and $500 against Summerlin. 12 ( See November 26, 2004 Verdict Sheet-2.) 13 Judgment was eventually entered reflecting the jury's 14 verdicts. 15

D. The Posttrial Motions 16 Followingthe jury's verdicts, defendants renewed their 17 motion for judgment as a matter of law, pursuant to Fed. R. Civ. P. 18 50(b), arguingprincipally (a) that the evidence was insufficient to 19 support the jury's findings i n favor of Zellner on his claims of 20 false arrest and malicious prosecution and its awar d o f punitive 21 damages, and (b) that the officers were protected by qu alifie d 22 immunity. Defendants also moved in the alternative for a new trial 23 on the ground, inter alia , that the court should have allowed them 24 to present evidence at trial as to facts that would have given them 25 probable cause to arrest Zellner on other charges. 26 Zellner opposed defendants' motions and moved pursuant to 27- 35 -

Fed. R. Civ. P. 59(a) for a new trial on his excessive force claim. 1 In support of his motion, Zellner argued principally that the jury 2 shouldhave been instructed that if it found in his favor on the 3 false arrest claim it must also find that the force used to effect 4 the arrest was excessive. 5 In an opinion dated September 6, 2005, reported at 399 6 F.Supp.2d154, the district court granted defendants' motion for 7 judgment as a matter of law dismissing Zellner's false arrest and 8 malicious prosecution claims only on the ground of qualified 9 immunity; and it denied Zel lner 's motion for a new trial on his 10 excessive force c laim. In rejecting defendants' challenge to the 11 sufficiencyof the evidence on the issue of probable cause, the 12 court stated as follows: 13 Defendants argue that they had probable cause 14 to arrest Plaintiff based on the fact that he 15 intentionallyblocked the truckas it was attempting 16 to enter the construction site, which Defendants 17 argue is incontrovertibly shown by the videotape, 18 andinitiated a confrontation with Weber duringthis 19 tense standoffby urging Weber to hold off on taking 20 anyaction until the protective order arriv ed i n a 21 manner that was "obstructive and distracting, in 22 viewof the imminent crisis pos ed b y the truck." 23 However, the v ideo itself was not conclusive as to 24 what happened when the truck attempted to turn into 25 the site , and the testimony at trial was 26 contradictory, with Plaintiff and members of the 27 Shinnecocktribe testifying that Plaintiff did not 28 obstruct the path of the truck but merely engaged 29 Weber in conversation in an attempt to maintain the 30 status quo until the restraining order arrived . The 31 jurywas free to consider all of the evidence and to 32 weighthe credibility of the witnesses. In deciding 33 in Plaintiff's favor on the false arrest claim, the 34 jury found Plaintiff's account of the events worthy 35 of more credence. This Court cannot now re-weigh 36 the conflicting evidence or draw its own conclusions 37 as to the credibility of the witnesses at trial, for 38 to do so would be to substitute the Court's judgment 39 for that of the jury, which is not permitted. Smith 40- 36 - v. Lightning Bolt Prods., Inc. , 861 F.2d 363, 367 1 (2d Cir.1988). Thus, the Court finds that there is 2 sufficient evidence to sustain the jury's finding 3 that Plaintiff's arrest was not based on probable 4 cause. 5 399 F.Supp.2d at 157-58 (emphases added). 6 In denying defendants' challenge to the sufficiency of the 7 evidence on Zellner's malicious prosecution claim, the court stated 8 as follows: 9 Defendants argue that Plaintiff failed to 10 demonstrate that the officers lacked probable cause 11 to initiate the prosecut ion and that they harbored 12 malice towards Plaintiff. As discussed above, there 13 was evidence adduced at trial to support the jury's 14 verdict that Defendants lacked probable cause to 15 arrest Plaintiff and there wa s no suggestion that 16 Defendants thereafter obtained further evidence 17 giving them probable cause to believe Plaintiff was 18 guiltyof the crimes charged again st him . . . . 19 With respect to malice, the Second Circuit has held 20 that where "a jury could find that probable cause 21 for the charges against the plaintiff[] was lacking 22 . . . that finding alone would support an inference 23 of malice." Ric ciuti v. New York City Transit 24 Auth. , 124 F.3d123, 131 (2d Cir.1997). Thus, the 25 Cou rt will not disturb the jury's finding tha t 26 Defendants acted without probable cause and with 27 malice in prosecuting Plaintiff. 28 399 F.Supp.2d at 158. In addition, th e co urt also ruled, inter 29 alia , that defendants' challenge to the jury's awa rd of punitive 30 damages was without merit, noting that "[p]unitive damages are 31 available in secti on 1983 cases where 'the defendant's conduct is 32 shown to be motivated by evil motive or intent, or when it involves 33 reckless or callous indifference to the federally protected rights 34 of others.'" Id . at 162 (quotin g S mith v. Wade , 461 U.S. 30, 56 35 (1983)). The court fou nd th at the award of punitive damages here 36

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

amo unts awarded were within the range found reasonable in sim ila r 38- 37 -

cases. See 399 F.Supp.2d at 162-63. 1 As to defendants' entitlement to qualified immunity, the 2 court, after noting that it was required, on defendants' motion for 3 judgment as a matter of law, to view the evidence in the light most 4 favorable to Zellner, stated as follows: 5 The evidence presented at trial . . . established 6 the following events leading up to Plaintiff's 7 arrest: (1) there was a large crowdof demonstrators 8 at the construction site who had been there for 9 several hours; (2) the demonstrators were instructed 10 bythe police to stay off of the road and the 11 drivewayallow ing i ngress to and egress from the 12 site; (3) a construction truck arrived on the scene 13 and the driver indicated his intention to enter the 14 site through the drivewayby turning on his blinker; 15 (4) the truck remained immobile in the road for 16 nearlyfive minutes, blocking traffic completely 17 fromat least one direction; (5) while the truckwas 18 stoppedin the road, demonstrators, including 19 children, walked and ran around it; (6) Plaintiff 20 walkedinto the driveway and turnedto face the road 21 where the truck was waiting; (7) Plaintiff e ngag ed 22 Weberin conversation and urged Weber not to take 23 anya ct ion until a restraining order, which was 24 expected, arrived, to which Weber respondedthat the 25 roadneeded to remain clear; and (8) at some point 26 Plaintiffmade a crouching or squatting motion 27 towards the ground . 28 Id . at 159 (emphasis added). "[C]onsider[ing] all of these events 29 in context in deciding whether it would have been clea r to a 30

reas ona ble officer that there was no probable cause to arrest 31 Plaintifffor disorderly conduct," id ., the court concluded as 32 follows: 33 It is apparent from the record that Defendants were 34 facedwitha tense situation forthe several minutes 35 when the construction truck was attempting to enter 36 a construction site flanke d on all sides by 37 protestors and their children. It is further clear 38 that Plaintiff's actions in engaging Major Weber in 39 conversation at that point , thereby distracting his 40 attention from the s ituation , and in making some 41 sort of movement that could have been interpreted as 42- 38 - an attempt to sit down in the path of the truck , 1 onlyexacerbated the situation. Thus, while 2 Defendants may have acted without justifiable cause 3 in arresting Plaintiff, the Court cannot say that 4 their"judgment was so fla wed t hat no reasonable 5 of ficerwould have made a similar choice ." Len no n 6 v. Miller , 66 F.3d 416, 424-25 (2d Cir.1995); see 7 also Hunter v. Bryant , 502 U.S. 224, 229, 112 S.Ct. 8 534, 116 L.Ed.2d589 (1991) ("The qualified immunity 9 standard'gives ample room for mistaken judgments' 10 byprotecting 'all but the plainly in c ompetent or 11 those who knowingly violate the law.'") (quot i ng 12 Malley v. Briggs , 475 U.S. 335, 341, 343, 106 S.Ct. 13 1092, 89 L.Ed.2d271 (1986)). Thus, the Court finds 14 that Defendants are entitled to qualified immunity 15 on the false arrest and malicious prosecution 16 charges. 17 399 F.Supp.2d at 159-60 (emphases added). 18 Zellner, in his Rule 59(a) motion for a new trial, argued 19 principallythat the jury should have been instructed that if it 20 found in his favor on the false arrest claim, it must also find in 21 his favor on the excessive-force-during-arrest claim, because if the 22 arrest was unlawful no force whatever could be justified. For that 23 proposition, Zellner relied on Atkins v. New York City , 143 F.3d 100 24 (2dCi r. 1998). The district court denied this motion for three 25

reasons. First, Zellner had not requested such an instruction. 26 Second, the court concluded that Atkins was not intended to be so 27 read. Third, the court stated that defendants would in any event be 28 entitledto qualified immunity on the excessive force claim as well. 29 See 399 F.Supp.2d at 163-65. 30 Anew final judgment was entered dismissing all of 31 Zellner's claims against Weber and Summerlin. This appeal followed. 32- 39 - II. DISCUSSION 1

On ap peal , Zellner contends principally that, in ruling 2 that defendants are entitled to judgment as a matter of law on the 3 basis of qualified immunity with respect to his false arrest and 4 malicious prosecution claims, the district court impermissibly made 5 findings of fact and ignored facts found by the jury. He also 6 contends t hat the court should have granted his motion for a new 7 trial with respect to his excessive force claim, on the theory that 8 the jury should have been instructed that if his arrest was 9 unauthorized, the use of any force bythe officers was excessive as 10 a matter of law. 11 Defendants contend, inter alia , that the entry of judgment 12

as a ma tter of law in their favor should be upheld on the ground 13 that they had either actual or "arguable" probable cause to arrest 14 Zellnerfor disorderly conduct in violation of § 240.20(5) of the 15 N ewYo rk Penal Law as charged, or to arrest him under subsections 16 (6) and (7) of that section or under N.Y. Penal Law § 195.05 17 (McKinney1999) ( see defendants' brief on appeal at 29-31). They 18 state that "the question here is whether the evidence esta blishe s 19 that, despite the jury's conclusion that Defendants lacked probable 20

cause to arrest Zellner for disorderly conduct or resisting arrest, 21 it was non eth eless reasonable for Defendants to believe they had 22 probable cause to arrest Zellner for anycharge." (Defendants' 23 brief on appeal at 29 (emphasis in original).) 24 As to the false arrest and malicious prosecution claims, 25

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

(a) that factual disputes are to be resolved by the jury, and (b) 1 that on a motion for judgment as a matter of law the record must be 2 viewedin the light most favorable to the party opposing the motion, 3 the granting of judgment as a matter of law in favor of defendants 4

was error. As to the excessive force claim, we see no error in the 5 district court's denial of Zellner's motion for a new trial. 6

A. Judgment as a Matter of Law on the Basis of Qualified Immunity 7 1. Qualified Immunity 8 Qualifiedimmunity shields government officials performing 9 discretionaryfunctions "from liability for civil damages insofar as 10 their conduct does not violate clearly established statutory or 11 constitutional rights of which a re asonable person would have 12 known." Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982); see , e.g. , 13 Mitchell v. Forsyth , 472 U.S. 511, 524 (1985); Coons v. Casabella , 14 284 F.3d 437, 440-41 (2dCir. 2002) (" Coons "); Cerrone v. Brown , 246 15 F.3d194, 199 (2d Cir. 2001) (" Cerrone "). Where the right at issue 16 in the circumstances con fronting police officers--here, the right 17 not to be subjected to a warrantless arrest without probable cause-- 18

was clearly established but was violated, the officers wil l 19 nonetheles s be enti tled to qualified immunity "if . . . it was 20 objec tiv elyreasonable for them to believe their acts did not 21 violate those rights." Oliveira v. Mayer , 23 F.3d 642, 648 (2d Cir. 22 1994) (" Oliveira "), cert. denied , 513 U.S. 1076 (1995); see , e.g. , 23 Anderson v. Creighton , 483 U.S. 635, 639-40 (1987). The qualified 24 immunitytest is an objective one. "[I]f officers of reasonable 25 competence could disagree" as to whether probable cause existed, 26- 41 -

"immunityshould be recognized." Malley v. Briggs , 475 U.S. 335, 1 341 (1986). But "if, on an objective basis, it is obvious that no 2 reasonablycompete n t officer would have concluded that" probable 3 cause existed, "[d]efendants will not be immune . . . ." Id . 4 Whether a defendant officer's conduct was objectively 5 reasonable is a mixed question of law and fact. See , e.g. , Kerman 6

v. City of New York , 374 F.3d 93, 109 (2d Cir. 2004) (" Kerman "); 7 Lennon v. Miller , 66 F.3d 416, 420-21 (2d Cir. 1995) (" Lennon "); 8 Oliveira , 23 F.3d at 649-50; Warren v. Dwyer , 906 F.2d 70, 76 (2d 9 Cir.) (" Warren "), cert. denied , 498 U.S. 967 (1990). The ultimate 10 question of whether it was objectively reasonable for the officer to 11 believ e that his conduct did not violate a clearly established 12 right, i.e. , whether officers of reasonable competence could 13 disagree as to the lawfulness of such conduct, is to be decided by 14 the court. However, "[a] contention that--notwithstanding a clear 15 delineation of the rights and duties of the respective parties at 16 t he tim e of the acts complained of--it was objectively reasonable 17 forthe official to believe that his a cts did not violate those 18 rights 'has its principal focus on the particular facts of the 19 case.'" Kerman , 374 F.3d at 109 (quoting Hurlman v. Rice , 927 F.2d 20 74, 78-79 (2d Cir. 1991)); see , e.g. , Oliveira , 23 F.3d at 649-50. 21 If there is no dispute as to the material hi storic al 22 facts, the matter of whether the officer's conduct was objectively 23 reasonable is an issue of law to be determined by the court. See , 24 e.g. , Lennon , 66 F.3d at 421; Robison v. Via , 821 F.2d913, 921 (2d 25 Cir. 1987). "[I]f there is such a dispute," however, "the factual 26 questions must be resolved bythe factfinder." Kerman , 374 F.3d at 27- 42 -

109; see , e.g. , Oliveira , 23 F.3d at 649; Calamia v. City of New 1 York , 879 F.2d 1025, 1036 (2d Cir. 1989). 2 Once the jury has resolved any d isp uted facts that are 3 material to the qualified immunity issue, the ultimate determination 4 of whether the officer's conduct was objectively reasonable is to be 5 made by the court. See , e.g. , Stephenson v. Doe , 33 2 F.3d 6 8, 81 6 (2dCir. 2003) (after the district court receives " the jury['s] 7

. . . deci[sion as to] what the facts were that the officer faced or 8 perceived ," the court th en m ay "make the ultimate legal 9 determination of whether qualified immunity attaches on those facts" 10 (i n ternal quotation marks omitted) (emphasis added)); Lennon , 66 11 F.3da t 421 (the ultimate question of entitlement to qualified 12 immunityis one of law for the court to dec ide "[o]nce disputed 13 factual i ssue s are resolved" (internal quotation marks omitted)); 14 Warren , 906 F.2d at 76 ("If there are unresolved factual issues 15 which prevent an early disposition of the defense, the jury should 16 decide these issues . . . . The ult imate legal determination 17 whether. . . a reasonable police officer should have known he acted 18 unlawfully" should be made by the court "on the facts found" by the 19 jury.); accord id . at 76, 77 (Winter, J ., dissenting) (Although "the 20 ultimate dec isio n regarding the qualified immunity defense is for 21 the court," "the court [that is] ruling on the qualified immunity 22 issue must know what the facts were tha t the officer faced or 23 perceived, and the finding of those facts appears to be a matter for 24 the jury."). 25 Qualified immunity is an affirmative defense. See Gomez 26 v. Toledo , 446 U.S. 635, 640 (1980). 27- 43 - [B]ecause qualified immunity is an affirmative 1 defense, it is incumb ent up on the defendant to 2 plead, and adequately develop, a qualified immunity 3 defense during pretrial proceedings so that the 4 trial court can determine . . . which facts material 5 to the qualified immunity defense must be presented 6 to the jury to determine its applicability once the 7 case has gone to trial . 8 Blissett v. Coughlin , 66 F.3d 531, 538 (2d Cir. 1995) (emphasis 9 added). To the extent that a particular finding of fact i s 10 essential to a determination by the court that the defendant is 11 entitledto qualified immunity, it is the responsibility of the 12 defendant to request that the jury be asked the pertinent question. 13 See , e.g. , id . If the defendant does not make such a request, he is 14 not entitled to have the court, in lieu of the jury, make the needed 15 factual finding. See , e.g. , Kerman , 374 F.3d at 12 0; see al so 16 Warren , 906 F.2d at 76 ( "the jury should decide these issues on 17 special interrogatories"). 18

2. Probable Cause and "Arguable" Probable Cause 19 Probable cause to arrest exists when the officers have 20 knowledge of, or reasonably trustworthy information as to, facts and 21 circumstances that are sufficient to warrant a person of reasonable 22 caution in the belief that an offense has been or is being committed 23 by the person to be arrested. See , e.g. , Dunaway v. New York , 442 24 U.S. 200, 208 n.9 (1979); Wong Sun v. United States , 371 U.S. 471, 25 479 (1963); Brinegar v. United States , 338 U.S. 160, 175-76 (1949); 26 Carroll v. United States , 267 U.S. 132, 161-62 (1925); Lee v. 27- 44 -

Sandberg , 136 F.3d 94, 102 (2d Cir. 1997). Probable cause is to be 1 assessedon an objective basis. "Whether probable cause exists 2 depends upon the reasonable conclusion to be drawn from the facts 3 known to the arresting officer at the time of the arrest." 4 Devenpeckv. Alford , 543 U.S. 146, 152 (2004). "[A]n arresting 5 officer's state of mind ( except for the facts that he kno ws ) is 6 irrelevant to the existence of probable cause. See Whren v. United 7 States , 517 U.S. 806, 812-813 (1996) (reviewing cases); Arkansas v. 8 Sullivan , 532 U.S. 769 (2001) (per curiam) ." Devenpeck , 543 U.S. at 9 153 (emphasis added). Thus, an officer's "s ubj ective reason for 10 making the arrest need not be the criminal offense as to which the 11 known facts provide probable cause," id .; an arrest is not unlawful 12 so long as the officer has knowledge of, or reasonably trustworthy 13 information as to, facts and circumstances sufficient to provide 14 probable cause to believe that the person arrested has committed any 15 crime, see , e.g. , id . at 155; Jaegly v. Couch , 439 F.3d 149, 154 (2d 16 Cir. 2006) ("[A] plaintiff is not entitled to damages under § 1983 17 forfalse arrest so long as the arrest itself was supportedby 18 probable cause, regardless of whether probable cause supported any 19 individual charge identified by the arresting officer at the time of 20 arrest."). 21 T he exi stence of probable cause need not be assessed on 22 the basis of the knowledge of a single officer. 23 [A]n a rre st . . . is permissible where the actual 24 arrestingor searching officer lacks the specific 25 information to form the basis for probable cause or 26 reasonable suspicion but sufficient information to 27 justify the arrest or search was known by other law 28 enforcement officials initiating or involved with 29 the investigation. 30- 45 -

UnitedStates v. Colon , 250 F.3d 130, 135 (2d Cir. 2001); see , e.g. , 1 UnitedStates v. Hensley , 469 U.S. 221, 230-33 (1985). This 2 principle, known as the collective or imputed knowledge doct rine , 3 recognizes that, "in light of the complexity of modern police work, 4 the arresting officer cannot always be aware of every aspect of an 5 investigation; sometimes his authority to arrest a suspect is based 6

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

v. Valez , 796 F.2d 24, 28 (2d Cir. 1986), cert. denied , 479 U.S. 8 1067 (1987); see , e.g. , United States v. Colon , 250 F.3d at 135. 9 Where it has been conceded or established that the 10 officers arrested the plaintif f wi thout a warrant and without 11 prob able cause, the question raised by the qualified immunity 12 defense is whether it was objectively reasonable for the officers to 13 believe they did have probable cause. Referring to this standard as 14 "arguable" probable cause, we have stated that 15 [a]rguable probable cause exists when "a reasonable 16 police officer in the same circumstances and 17 possessingt he same knowledge as the officer in 18 question couldhave reasonably believed that 19 probable ca use existed in the light of well 20 establishedlaw." Lee v. Sandberg , 136 F.3d94, 102 21 (2d Cir.1997) (internal quotation marks omitted). 22 Cerrone , 246 F.3d at 202-03 (emphasis in original); see also 23 Escalera v. Lunn , 361 F.3d 737, 743 (2d Cir. 2004) ("Arguable 24 probable cause exists 'if either (a) it was objectively reasonable 25 forthe officer to believe t hat probable cause existed, or 26 (b) officers of reasonable competence coulddisagree on whetherthe 27 probable cause test was met.'" (quoting Golino v. City of New Haven , 28 950 F.2d 864, 870 (2d Cir. 1991))). 29 Althoughthe tests for pro bab le cause and arguable 30- 46 -

probable cause are thus n ot congruent, see , e.g. , Anderson v. 1 Creighton , 483 U.S. at 640-41, the concept of probable cause is the 2 same in both inquiries. "Probable cause existed if 'at the moment 3 the arrest was made . . . the facts and circumstances within the[ 4 officers'] knowledge and of whichthe y had reasonably trustworthy 5 information were sufficient to warrant a prudent man in believing' 6 that [the suspect] hadviolated" the law, Hunter v. Bryant , 502 U.S. 7 224, 228 (1991) (q uoting Be ck v. Ohio , 379 U.S. 89, 91 (1964)) 8 (emphasis ours); and an officer sued under the Fourth Amendment for 9 false arrest is "entitled to immunity if a reasonable officer could 10 have believed that probable cause existed ," Hunter , 502 U.S. at 228 11 (emphasis added). Accordingly, like the probable cause analysis, 12 the analysis of a qualified immunity defense to claims that official 13 actions were taken without probable cause "entails an inquiry into 14 the facts known to the officer at the time of the arrest," Coons , 15 284 F.3d at 441. "A court must evaluate the objective 16

reason ableness o f the appellants' conduct 'in light of . . . the 17 information the . . . off icers possessed.'" Cerrone , 246 F.3d at 18 202 (quoting Anderson v. Creighton , 483 U.S. at 641). 19 "'Arguable' probable cause" must "not be misunderstood to 20

mean 'almost' probable cause." Jenkins v. City of New York , 478 21 F.3d 76, 87 (2d Cir. 2007). 22 The essential inquiry in determining whether 23 qualifiedimmunity is available to an officer 24 accusedof false arrest is wh ether it was 25 objectivelyreasonable for the officer to conclude 26 that probable cause existed. See An derson [ v. 27 Creighton] , 483 U.S. at 644 . . . . There should be 28 no do u bt that probable cause remains the relevant 29 standard. If officers of reasonable competence 30 wouldhave to agree that t he i nformation possessed 31- 47 - by the officer at the time of arrest did not add up 1 to probable cause, the fact that it came close does 2 not immunize the officer . 3 Jenkins v. City of New York , 478 F.3d at 87 (emphasis added); see 4 also Cerrone , 246 F.3d at 202-03 (arguable probable cause focuses on 5 the objectivelyreasonable belief of "a reasonable police officer in 6 the same circumstances and possessing the same knowledge as the 7 officer in question" (internal quotation marks omitted)). 8

3. The Standard for Judgment as a Matter of Law 9 In considering a motion for judgment as a matter of law, 10 the district court 11 must draw all reasonable inferences in favor of the 12 nonmovingparty, and it may not make cr edibi lity 13 determinations or weigh the evidence . . . . 14 "Credibilitydeterminations, the weighing of the 15 evidence, and the drawing of legitimate inferences 16 fromthe facts are jury functi ons , not those of a 17 judge." . . . Thus, altho ugh the court should 18 review the record as a whole, it must disregard all 19 evidence favorable to the movingparty that the jury 20 is not required to believe . 21 Reeves v. Sanderson Plumbing , 530 U.S. 133, 150-51 (2000) (quoting 22 Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986)) (emphases 23 ours). Thus, a court may grant a motion for judgment as a matter of 24 law"only if it can conclude that, with credibility assessments made 25 against the moving party and all inferences drawn against the moving 26 party, a reasonable juror would have been compelledto accept the 27 viewof the moving party." Piesc o v . Koch , 12 F.3d 332, 343 (2d 28 Cir. 1993) (emphasis added). In ruling on a such motion, the court 29- 48 -

must bear in mind that the jury is free to believe part and 1 disbelieve part of any witness's testimony. See , e.g. , Fiacco v. 2 Cityof Rensselaer , 783 F.2d 319, 325 (2d Cir. 1986), cert. denied , 3 480 U.S. 922 (1987); see also Haywood v. Koehler , 78 F.3d 101, 105 4 (2dCir. 1996) (jurors are "free to ac cept bits of testimony from 5 several witnesses and to make reasonable inferences fromwhatever 6 testimony they credit[]"). 7 Incontrovertible evidence relied on by the moving party, 8 suchas a relevant videotape whose accuracy is unchallenged, should 9 be credited by the court on such a motion if it so utterly 10 discredits the opposing party's version that no reasonable juror 11 couldfail to believe the version advanced by the moving party. See 12 Scott v. Harris , 127 S. Ct. 1769, 1775-76 (2007) (so ho ldingwith 13 respect to proceedings on summary judgment); see generally Reeves , 14 530 U.S. at 150 ("the standard for granting summary judgment 15 'mirrors' the standard for judgment as a matterof l aw, such that 16 'the inquiry under each is the same'" (quoting Anderson v. Liberty 17 Lobby, Inc. , 477 U.S. at 250-51)). 18 The court is not permitted to find as a fact a proposition 19 that is contrary to a finding made by the jury. See , e.g. , Smith v. 20 Lightning Bolt Productions, Inc. , 861 F.2d 363, 367 (2d Cir. 1988) 21 (court "cannot . . . substitute its judgment for that of the jury" 22 (internal quotation marks omitted)); see also Leblanc-Sternberg v. 23 Fletcher , 67 F.3d 412, 430 (2d Cir. 1995) ("In ruling on the motion 24 by[one codefendant] forjudgment a s a matter of law, . . . the 25 court was required to viewthe evidence in the light most favorable 26 to the [individual] plaintiffs"; "whatever its own view of the facts 27- 49 -

mayhave been, the court was not entitled to substitute its view for 1 adequatelysupported findings that were implicit in the jury's 2 verdict" against another defendant.), cert. denied , 518 U.S. 101 7 3 (19 96). Nor is the court permitted to make findings on factual 4 questions not submitted to the jury where those findings take the 5 evidence in the light most favorable to the moving party, rather 6 than the opposing party. See , e.g. , Kerman , 374 F.3d at 120. 7 We review de novo the district court's decision on a 8 motion for judgment as a matter of law. In so doing, we apply the 9

same standardthat is required of the district court. We "consider 10 the evidence in the light most favorable to the party against whom 11 the motion was made and . . . gi ve that party the benefit of all 12 reasonable inferences that the jury might have drawn in his favor 13 fromthe evidence." Black v. Finantra Capital, Inc. , 418 F.3d203, 14 20 9 (2d Cir. 2005) (internal quotation marks omitted). W e 15 "disregardall evidence favorable to the moving party that the jury 16 is not required to believe." Reeves , 530 U.S. at 151. 17

4. The Record in the Present Case 18 In the present case, defendants seek to defend the 19 district court's decision granting them qualified immu nity as a 20 matteroflaw by asserting that they had actual or arguable probable 21 cause to arrest Zellner (a) for disorderly conduct in violation of 22 N.Y. Penal Law § 240.20(5), as charged, and (b) for otherviolations 23 not charged, to wit, disorderly conduct in violation of subsections 24 (6) and (7) of § 240.20 and obstructing the troopers' functioningin 25 vi olation of Penal Law § 195.05. We conclude, applying the a bov e 26- 50 -

principles, that the record does not support qualified immunity on 1 any of these bases. 2

a. Disorderly Conduct As Charged, § 240.20(5) 3 In support of probable cause or argu able probable cause 4 forZellner's arrest on the actual charge of violating § 240.20(5), 5 whichinvolves obstruction of traffic, defendants state principally 6 that after the truck arrived, "Zellner walked into the crowd that 7

was in the direct path of the truck" (Defendants' brief on appeal at 8 33) ; that "Zellner deliberately started to sit down . . . and 9 shoutedfor everybody else to do so" ( id . at 7); and that during his 10 conversation with Major Weber, Zellner crouched, squatted, or made 11

some other movement towardthe ground ( see id . at 35, 40) "that 12 reasonablycould have been interpretedas an attempt to sit down in 13 the path of the truck" ( id . at 35). These contentions impermissibly 14 disregard the evidence and the jury's verdict. 15 First, defendants' assertion that "Zellner walked into the 16 crowd that was in the direct path of the truck" (Defendants' brief 17

on appeal at 33) is unaccompanied b y a ny supporting citation. 18 Moreover, ifwe draw all inferences in Zellner's favor, as we must, 19 the record does not support the contention that Zellner was actually 20 and immediately blocking the truck. Reverend Davis testified that 21 Zellnerwas not with the group that was standing in front of the 22 tr uckbut rather was away from the road. ( See Tr. 7 8.) An d 23 althoughthe videotape shows that Zellner walked into a group of 24- 51 -

people standing in and around the driveway, it is impossible to tell 1 whether he was in the truck's direct path at any time. 2 Second, although Major Weber and the troopers who 3 testified at trial stated that Zellner had sat down on the ground, 4 andsome of the troopers testified that Zellner had yelled for 5 everyone else to sit as well, the jury's rejection of that testimony 6 is implicit in its finding that defendants failed to show that they 7 hadprobable cause for Zellner's arrest for disorderly conduct. The 8 evidence taken in the light most favorable to Zellner--as we are 9 requiredto view it, and the jury was at liberty to view it--was 10 that Zellner introduced himself to Major Weber, and the two shook 11 hands; that, in a quiet and respectful manner, Zellner said that he 12 understoodthat a restraining order requiring cessation of the 13 construction work was on the way; that he requested of Major Weber 14 that the troopers not take any further action until the restraining 15 order arrived; and that Zellner said he hoped t hat t here would be 16 evenhandedtreatment of everyone. Some 20-30 seconds into this 17 conversation, while literally still speaking to Major Weber, Zellner 18

was grabbed frombehin d, pulled backwards away from Weber, and 19 pulled and pushed to the ground. 20 Zellner and his witnesses testified that Zellner did not 21 sit down and that he did not attempt to sit down. Zellner did not 22 yell "everybody down" to the crowd even once, much less two or three 23 times as Major Weber testified. Zellner did not yell anything. The 24 protestors who testified at trial, some of whom were close enough to 25 touchZellner before he was grabbed by the troo pers, did not hear 26 himyell anything. Even Trooper Parker, standing righ t behi nd 27- 52 -

Zellner and slightly to his right, did not hear him yell anything. 1 Plainlythe jury was not required to accept the defense version that 2 Zellnersat down on the ground or that he yelled for anyone else to 3 sit down. 4 Nor is there merit in defendants' assertion, invoking the 5 district court's findings, that "[d]uring []his conversation" with 6 Major Weber (Defendants' brief on appeal at 35), Zellner made a 7 "'crouchingor squatting moti on towards the ground'" or otherwise 8 "made ' some sort of movement that could have been interpreted as an 9 attempt to sit down in the path of the truck '" ( id . at 40 (quoting 10 district court opinion, 399 F.Supp.2d at 159) (emphasis ours)). The 11 contention that defendants are entitled to qualified immunity on 12 this basis is flawed for a number of reasons. 13 First, no trooper could make the "interpret[ation]" 14 hypothesizedabove, unless Zelln er act ually made a crouching, 15 squatting, or other downward movement. Absent such a movement, 16 there was nothin g for the troopers to interpret. Whether or not 17 Zellnermade any such movement, however, was a question of fact. 18 "The court . . . found that some motion was made" (Defendants' brief 19

on appeal at 41), which obviously was a factual finding. But making 20 findings of fact and drawing factual inferences "'are jury 21 functions, not those of a judge.'" Reeves , 530 U.S. at 150 (quoting 22 Anderson v. Liberty Lobby, Inc. , 477 U.S. at 255). 23 Second, as to any act that defendants conten ded Zellner 24 performed, and which they wished to argue provided either probable 25

cause or arguable probable cause for his arrest, it was incumbent on 26 defendants to have the jury decide whether Zellner in fact performed 27- 53 -

that act. Defendants did not request that the court include in the 1 special verdict sheet any fact-specific question as to the conduct 2 in which Zellner engaged, including whether he sat down on the 3 ground, or made a crouching or squatting motion, or made any 4 movement toward the ground. No such question having been put to the 5 jury(and answered favorably to defendants), no movement byZellner 6 suchas crouching or squatting was established as a fact. The court 7 was not entitled to provide the missing factual finding unless the 8 inference the court drew was one that the jurywould ha ve been 9 compelled to draw. 10 No inference that Zellner made such a movement was 11 compelled in this case. Defendants argue that the court's finding 12 that Zellner made a "'crouching or squatting motion'" or some other 13 suchmovement "'towards the ground'" was "appropriate" because "the 14 juryrejected Zellner's assertion that he was thrown to the ground." 15 (Defendants' brief on appeal at 40 (quotingdistrict court opinion, 16 399 F.Supp.2d at 159).) This contention disregards the record, the 17 verdict, and the principles discussed in Part II.A.3. above. 18 Although the jury found that Zellner did not establish that he was 19

" throw[n] . . . to the ground" (Special Verdict Answer 1 (emphasis 20 added)), Zellner hadtestified that he was "face-to-face with Major 21 Weber" when he "was grabbed from behind, pulled backwards and down" 22 (Tr. 380) and that he "was grabbed from behind and pushed down" ( id . 23 at 345). Reverend Davis testified to her observation that Zellner 24

was taken to the ground by"4 troopers touching him." ( Id . at 58.) 25 The photograph introduced as PX 19D, in which Zellner's body is at 26

a 45-degree angle to the ground, shows fo ur troopers touching 27- 54 -

Zellner: Summerlin and Parker having hold of his arms, with most of 1 their body mass behind Zellner; Drew with his hand on Zellner's back 2 ( see Tr. 678); andMajor Web er with his left arm fully extended, 3 leaningtowardZelln er with his hand on Zellner's right shoulder. 4 Zellner and Reverend Davis testified that PX 19D shows the precise 5 point at which Zellner had been grabbed and was being taken to the 6 ground, and the positions and postures of all the persons shown in 7 that picture are entirely consistent with the testimonythat Zellner 8

was grabbed from behin d and was pulled and pushed to the ground. 9 The jury found "[t]hat the events surrounding plaintiff's arres t , 10 particularlygrabbinghim, . . . occurred substantiallyas plaintiff 11 contends " (Special Verdict Answer 1 (emp hasis added)). Zellner's 12 being"grabbed from behind and pushed" and "pulled" down is not 13 inconsistent with the finding that he had not been subjected to the 14 more violent action of being "throw[n]" down. 15 Further, the evidence contradicts the proposition that 16 Zellne r c rouched, squatted, or otherwise moved downward in a way 17 that could reasonably have been interpreted as an attempt to sit 18 down. All of the troopers who testified at trial testified that 19 Zellnerdropped to the ground and actually sat. Major Web er, w ho 20

was standing 6-8 inches from Zellner, testified that Zellner 21 "droppedto the ground" (Tr. 134) "in a split second" ( id . at 135). 22 No troopertestified that Zellner, instead of actuallysitting, had 23 made a crouching, squatting, or other motion that could have been 24 interpretedas an attempt to sit. Having discredited the troopers' 25 actual testimony that Zellner in fact sat, the jury was not required 26 to infer that Zellner hadinstead made some lesser movement that no 27- 55 -

trooper described. 1 Moreover, consistent with the absence of any testimony by 2 the troopers that Zellner had crouched, squatted, or made any other 3 suchmovement, Zellner's witnesses testified that Zellner was simply 4 standingthere when he was grabbed by the troopers. Wright 5 testifiedthat Zellner was "standing," doing "[n]othi ng." (Tr. 6 318.) Reverend Davis testified to her observation that, other than 7 drinkingcoffee, "he wasn't doing anythi ng." ( Id . at 58.) And 8 Gumbs, when asked what Zellner "was doing with his body" before he 9

was grabbed, testified that Zellner "was standing there," no t 10 "sitting or anything else ." ( Id . at 307 (emphasis added).) 11 The factual prop osi tion that Zellner had made some 12 movement that could reasonably have been interpreted as an attempt 13 to sit in the path of the truck is thus inconsistent with the 14 evidence and is a propositio n tha t the jury, even if asked, would 15 not have been required to accept--especially in light of its 16 conclusions that the version of the facts presented by the troopers 17

was not credible and that defendants' treatment of Zellner warranted 18 the imposition of punitive damages. 19 In sum, as the jury was entitledto cr edit Zellner's 20 testimonyand that of his witn esses that he had done nothing but 21 standand talk to Major Weber when he was grabbed and pushed and 22 pulled down by the troopers, the jury was not compelled--and hence 23 the court was not permitted--to find that Zellner had made some 24 downwardmovement on his own. Without the fact of such a movement, 25 there was no thing for defendants to interpret in a way that gave 26 them even arguable probable cause. 27- 56 - We note that it is not entirely clear that the district 1 court found that the "crouching or squatting motion" it attributed 2 to Zellner occurred during his conversation with Major Weber , fo r 3 the court stat ed th at that movement was made "at some point," 399 4 F.Supp.2dat 159. And defen dant s seem to suggest that two such 5 motions are shown in a seven-second segment of the videotape before 6 Zellnerand Major Weber met. ( See , e.g. , Defendants' brief on 7 appeal at 6 (Zellner "bent down twice . . . and then walkedforward 8 to talk to Major Weber").) There are two pr incip al problems with 9 suchan interpretation. First, that segment of the videotape shows 10 Zellnerbendingforward (to put his coffee mug down briefly while he 11 closedhis coat, Zellner testified), not making a squatting or a 12 crouchingmotion. Second, even if bending forward could reasonably 13 be considered a squatting or a crouching motion, there is no 14 evidence in the record that any t rooper, at the time of Zellner's 15 arrest, was aware of tha t motion. The trooper who had been 16 instructedby Major Weber to activate the video camera did not 17 testifyat trial; there is thus no evi denc e that the camera was 18 mannedand that the events it captured on tape were seen by that 19 tr oopercontemporaneously. Nor did any of the trooper s wh o 20 testifiedat trial claim to have seen Zellner's bending movement. 21 AlthoughM ajor Weber testified at trial that he interpreted 22 Zellner's bending forward as practicing sitting down and instructing 23 the crowd on how to sit down ( see Tr. 118-20), Major Weber plainly 24 didnot see that movement when it occurred. Zellner's bending 25 motion occurred at 13:19:20 to 13:19:26 on the videotape, which was 26 several minutes before Zellner and Major Weber met. Major Weber 27- 57 -

testifiedthat he first saw Zellner when the two were just five feet 1 apart, and their conversation ensued immediately. ( See id . at 172.) 2 Major Weber's first inkling that Zellner had ever bent down came 3 upon his viewing the videotape at trial. ( See Tr. 120 ("I believe 4 after seeing this video that was a practice run . . . .") (emphasis 5 added).) As discussed in Part II.A.2. above, however, the existence 6 of both probable cause and arguable probable cause must be assessed 7

on the basis of "the fact s known to the officer[s] at the time of 8 the arrest," Coons , 284 F.3d at 441; see , e.g. , Hunter, 502 U.S. at 9 228; Anderson v. Creighton , 483 U.S. at 641; Cerrone , 246 F.3d a t 10 202. Zellner's action in bending to put his coffee mug down and 11 then to pick it up, which no trooper claimed to have seen, provided 12

no basis for a finding of either probable cause or arguable probable 13

cause. 14

b. Disorderly Conduct Under §§ 240.20(6) and (7) 15 Defe n dants' contention that they had probable cause or 16 arguable probable cause to arrest Zelln er f or violating two 17 unchargedsubsections of New York's disorderly conduct statute fares 18

no better. Those subsections provide that "[a] person is guilty of 19 disorderlyconduct when, with intent to cause public inconvenience, 20 annoyance or alarm, or recklessly creating a risk thereof," 21 6. He congregates with other persons in a 22 pu blic place and refuses to comply with a law fu l 23 order of the police to disperse ; or 24 7. He creates a hazardous or physical l y 25 offen sive c ondition by any act which serves no 26 legitimate purpose . 27 N.Y. Penal Law §§ 240.20(6), (7) (emphases added). 28- 58 - As to subsection (6), defendants do not ci te to any 1 evidence in the reco rd to show that Zellner was given any order 2 within the scope of § 240.20(6). Zellner testified that he was not 3 orderedto do anyth ing. Reverend Davis, who was standing no more 4 than 1 0 feet away from Zellner and Major Weber while they wer e 5 conversing, testified that she did not hear any of the troopers 6 given Zellneran order. Major Weber did not testify that he or any 7 other trooper gave Zellner an order, and the other troopers did not 8 testifythat they gave Zellner any order. The record d oes not 9 suppo rt the contention that there was probable cause--or that a n y 10 reasonablycompetent trooper could have concluded that there was 11 probable cause--to arrest Zellner for violating subsection (6). 12 As to sub sect ion (7)--"creat[ing] a hazardous . . . 13 condition by any act which serves no legitimate purpose"-- 14 defendants' probable cause and arguable probable cause contentions 15

are doubly flawed. First, defendants point to no evidence to 16 support a reasonable belief that Zellner himself created any 17 "hazardous condition." They assert in their brief on appeal that 18 after the pickup truck arrived at the demonstration site and began 19 to make a left turn into the driveway, "Zellner walked into the 20 crowd that was in the direct path of the truck" (Defendants' brief 21 on appeal at 33). However, as discussed in the preceding section, 22 that characterization of Zellner's actions is cont radi cted by the 23 testimonyof Reverend Davis and by the videotape showing Zellner 24 moving away from the road. 25 Second, we cannot say, based on the record before us, that 26

a reasonable officer could have believed that Zellner's conversation 27- 59 -

with Major Weber "serve[d] no legitimate purpose." We must accept 1

as true Zellner's testimony that he was quietly and respectf ull y 2 conveyinginformation to the officer in charge as to the imminent 3 arrival of a court injunction to halt the continuation of 4 construction andwas asking for patient and evenhandedtreatment in 5 the interim. The initiation of such a 20-or 30-second conversation 6 bythe co-chair of the Town's Anti-Bias Ta sk Force p lainly has a 7 legitimate purpose, and no reasonably competent officer could have 8 concluded otherwise. 9

c. Interference With a Governmental Function, § 195.05 10 Section 195.05 ofthe Penal law, invoked by defendants in 11 their posttrial motion and on this appeal, provides in part that 12 [a] person is guilty of obstructing governmental 13 administration when he intentionally obstructs, 14 impairs or perverts the administration of law or 15 other governmental function or prevents or attempts 16 to prevent a public servant from performin g a n 17 official function, by means of . . . interference 18

. . . . 19 N.Y. Penal Law § 195 .05. Defendants suggest that they would have 20 hadprobable cause or arguable probable cause to arrest Zellner 21 under this section for "intentionallyobstruct[ing], impair[ing] or 22 pervertingthe State Troopers' ability to manage the situation." 23 (Defendants' bri ef on appeal at 36-37 (internal quotation marks 24 omitted).) They argue that 25

even if Zellner did not make a movement that 26 reasonablycould have been interpreted as an attempt 27 to sit down, it would not have been unreasonable for 28 an officer to believe that he had probable cause to 29 arrest Zellner basedon: (1) the increasingly 30 dangerous situation with a crowd of people causinga 31 truckto stop on a two-lane public road andchildren 32- 60 - standing, walking, and running near the truck and 1 the r o ad; (2) Zellner's apparent influence on the 2 crowd; and (3) Zellner's interference with Major 3 Weber's ability to control the situation byengaging 4 MajorWeber at the moment he was trying to dif fuse 5 [ s ic ] the situation, standing in a way that for ce d 6 MajorWeber to turn his back on the road, and urging 7 Major Weber not to take any action. 8 (Defendant s' br ief on appeal at 37.) The record does not include 9 sufficient evidence to support these assertions. 10 First, as notedabove, the recorddoes not establish that 11 Zellnerhimself was in the truck's direct path. No matter how tense 12 that situation, defendants were not entitled to arrest Zellner 13 unless there was probable cause to believe that Zellner had broken 14 the law. Second, there was no evidence at trial as to Zellner's 15 influence--orapparent influence--on the cr owd . Major Weber 16 testifiedthat he did not recognize Zellner as one of the protestors 17 ( see Tr. 172); and there was no evidence in the record that any of 18 the troopers had knowledge or information sufficient to give them a 19 reasonable belief that Z elln er had influence over the protestors. 20 Third, there was no evidence that Zellner's conversation with Major 21 Weber--lasting20-30 seconds by Major Weber's own account-- 22 interferedwith the police function in any way. Major Weber 23 indicatedthat he had some 20 troopers on the scene ( see Tr. 96); 24 Weber himself was giving orders to a captain who was marshaling the 25 troopers to deal with the truck, and the captain "proceeded to try 26 to get the truck[] in." ( Id . at 134.) Reverend Davis testified 27 that when the crowd around the truck was ordered to disperse, it did 28

so. ( See Tr. 80.) In the meantime, Major Weber embarked on a 29 thoroughexplanation to Zellner as to the builders' desire to "leave 30- 61 -

the scene to go to other projects for the next thirty days," and 1 their "need[ for] some of their equipment," for "constru ctio n 2 projects," and that the purpose of the incoming truck was "to refuel 3 equipment so they could leave" ( id . at 133-34), an explanation whose 4 expansiveness suggests that the troopers did not have a reasonable 5 beliefthat Zellner was interfering with the perform ance o f their 6 duties. 7 On the exi stin g record, it would not be objectively 8 reasonable for anyreasonably competent officer to believe that the 9 initiation by the co-chair of the Town's Anti-Bias Task Force of a 10 20- or 30-second conversation with the major in charge of a highly 11 structuredtea m of some 20 troopers, respectfully informing the 12 major of the imminent arrival of an injunction and asking for 13 patience and evenhanded treatment until its arrival, constitutes an 14 obstruction of governmental administration. 15

B. Zellner's Rule 59 Motion for a New Trial 16 Zellner contends that the district court erred in denying 17 his motion for a new trial on his exces sive for ce claim. In that 18 motion, Zellner argued, citing Atkins v. New York City , 143 F.3d 19 100, that the jury should have been instructed that if it found he 20 hadbeen arrested without probable cause, it must find that any 21 force used by defendants in the course of that arrest was excessive 22 and thus must return a verdict in his favor on the excessive force 23 claim. The district court denied the motion on the principal 24 grounds that Zellner had not requested such an instruction and that 25 Atkins was not intended to stand f or that pr oposition. We agree 26- 62 -

with these rulings. 1 Zellner's Initial Request for Jury Instructions, filed 2 November11, 2004, did not request such an instruction, and we have 3 not seen any indication in the record that Zellner filed a 4 subsequent request. Although Zellner asserts on appeal that he "had 5 made known his views regarding Atkins " (Zellner's brief on appeal at 6 40 n.7), he cites only a letter from his attorneyand a statement at 7 the charging conference. The letter, however, cites Atkins only as 8 supporting Zellner's "opposition to Defendants' 50(a) Motion, made 9 duringtrial on November 18, 2004." (Letter from Zellner's counsel 10 to the court date d Novemb er 19, 2004.) At the cited pages of the 11 chargingconference, Zellner's counsel stated, somewhat cryptically, 12 that "[t]he issue there, Judge, is whether or not, if indeed there 13

was or was not probable cause, any force was reasonable or 14 unreasonable." (Tr. 544.) Counsel then proceeded to state that, 15 "[i]f indeed there was no basis for the arrest, and if indeed the 16 juryfinds that there was no probable cause for the arrest, any form 17 of force would be unauthorized ( id . at 545). However, we do not see 18 anywhere in the colloquy a request that the jury be so instructed or 19 any citation to Atkins . 20 Further , At kins does not stand for the proposition that 21 Zellner attributes to it. In Atkins , the jury found both that the 22 plaintiffhad been arrested without probable cause and that the 23 officers had used excessive force in the arrest; however, the jury 24 awardedonly nominal damages despite undisputed evidence of serious 25 injury. We ruled that where the jury has found a constitutional 26 violation and there is no genuine dispute that the violation 27- 63 -

resultedin some injury to the plaintiff, the plaintiff is entitled 1

as a matterof law to an award of compensatory damages. See , e.g. , 2 Kerman , 374 F.3d at 124 (describing Atkins ). Although there is 3 language in the Atkins opinion to the effect that, given the absence 4 of probable cause there was never a time when the use of force was 5 lawful, see Atkins , 143 F.3d at 103, the fact is tha t the ju ry in 6 Atkins had found that excessive force was used, and we have ruled 7 that the opinion does not stand for the prop osition that in the 8 absence of probable cause for an arrest, any force that was used in 9 makingthe arrests was excessive, see Papineau v. Parmley , 465 F.3d 10 46, 62 (2d Cir. 2006). 11 Accordingly, the district court properly denied Zellner's 12 motion for a new trial on his excessive force claim. 13

CONCLUSION 14

We have considered all of the parties' arguments i n 15 support of their respective positions on this appeal and, except for 16 concluding that the district court erred in granting judgment as a 17 matterof law in favor of defendants on the basis of qualified 18 immunity, we have found them to be without merit. For the reasons 19 statedabove, we affirm so much of the judgment as dismissed 20 Zellner's claim alleging the use of excessive force. We reverse so 21 muchof t he judgment as dismissed his § 1983 claims against Major 22 Weber and Trooper Summerlin for false arrest and malicious 23 prosecution, and we remand for entry of an ame nded judgment 24 reinstatingthe jury's verdict with respect to those claims, and for 25- 64 -

such further proceedings as may be appropriate. 1 Zellner is also entitled to recover costs, including a 2 reasonable attorney's fee, see 42 U.S.C. § 1988, in connection with 3 the portion of this appeal as to which he is the prevailing party, 4

see , e.g. , Cohen v. West Haven Board of Police Commissioners , 638 5 F.2d496, 506 (2d Cir. 1980); the amount is to be determined by the 6 district court. 7