McDevitt v. Suffolk County et al | E.D. New York | 03-26-2024 | www.anylaw.com (2024)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------------------X MICHAEL W. MCDEVITT, MEMORANDUM OF

Plaintiff, DECISION AND ORDER CV 16-4164 (GRB)(ST) -against-

SUFFOLK COUNTY, SUFFOLK COUNTY POLICE DEPARTMENT, SUFFOLK COUNTY POLICE OFFICER GLENN TARQUINIO, in his individual and official capacities, SUFFOLK COUNTY POLICE OFFICER ALEJANDRO SANCHEZ, in his individual and official capacities, SUFFOLK COUNTY POLICE O - their individual and official capacities, Defendants. ------------------------------------------------------------------X GARY R. BROWN, United States District Judge: Presently before the Court are motions by defendants herein seeking post-trial relief under Rules 50 and 59 from a judgment in favor of plaintiff on his claim for malicious prosecution as against defendant Police Officer Glenn Tarquinio, awarding an aggregate sum of $600,000, and against defendant Suffolk County for nominal damages based on a Monell pattern, practice, policy or custom. As to the individual liability finding, verdict is well-supported by the evidence. As to damages, however, the parties agree that

remittitur is appropriate, which is discussed further herein. Finally, as to the Monell verdict, the malicious prosecution, and therefore the County is entitled to relief in that respect.

12:23 pm, Mar 26, 2024

FILED CLERK U.S.DISTRICTCOURT EASTERNDISTRICTOFNEWYORK LONGISLANDOFFICE Applicable Standard for Post-Verdict Motions

seeking judgment as a matter of law, a new trial and remittitur are decided based upon the well-established standard for the consideration of such motions in this Circuit as discussed in detail in Anderson v. Aparicio, 25 F. Supp. 3d 303 (E.D.N.Y. 2014), aff d and remanded sub nom. Anderson v. Cty. of Suffolk, 621 F. App x 54 (2d Cir. 2015), which discussion is hereby incorporated by reference.

Relevant Facts and Discussion The trial in this matter generated an extensive factual record, which is only summarized here as needed for resolution of the pending motions. In summary, the testimony revealed that defendant Tarquinio responded to a 911 call reporting a disturbance at a residence. That disturbance related to an ongoing dispute among plaintiff, a tenant, the landlord and a contractor performing work on a residence. While attempting to investigate the call, the plaintiff, without justif speak with a witness. 165-4 Tr 241 42, 275 76, 290 93, 336 (plaintiff acknowledges refusing lawful

order to leave). The jury, therefore, properly found that Tarquinio had probable cause to arrest plaintiff for obstructing governmental administration, thereby rejecting plaintiff s false arrest claim. See DE 144-3 Court Ex. 10 at 1.

The jury determined, however, that during the arrest, Tarquinio used excessive force against the plaintiff. Id. at 2. s of their interaction vary, as plaintiff and another witness described a severe, unprovoked attack upon plaintiff by Tarquinio. 1

Even

1 One witness described observing Tarquinio strike plaintiff in excess of 50 times with 97, 336. This description seems at odds with other evidence of record. See, e.g., . Q & R (hospital records relating to plaintiff showing largely unremarkable injury); Tr. 545 46. While the Tarquinio acknowledged that he preemptively struck plaintiff in the face, knocking his glasses to the ground, to gain the element of surprise. Tr. 61, 142. Thus, while not subject to challenge, plaintiff. At the same time, the jury determined that plaintiff failed to adequately demonstrate

injury from that use of force. 2 Charges filed by Tarquinio against plaintiff gave rise to a finding of malicious prosecution. The jury found that plaintiff proved by a preponderance of the evidence that Tarquinio lacked probable cause to commence and continue one or more of the three charges with which plaintiff was charged and acted maliciously in doing so a finding that nt of second-degree felony assault charges against plaintiff and the resisting arrest misdemeanor charge determination, the County asserts that the evidence cannot support the finding and/or that

Tarquinio is entitled to qualified immunity on this point. Initially, the record reveals that Tarquinio signed instruments charging the plaintiff with two misdemeanor offenses: Obstructing Governmental Administration and Resisting Arrest. See DE 165-16 at 2; DE 165-18 at 2. On the way to the police station, Officer Sanchez, who took custody of plaintiff while Tarquinio sought medical attention, advised plaintiff to secure $500 to post for bail, giving rise to the inference that plaintiff would be released that day. Tr. 351.

Immediately after plaintiff was booked on the misdemeanor charges, Tarquinio advised him that Tr. 360. The plaintiff asked

jury found Tarquinio employed excessive force during the arrest, it apparently (and understandably) did not credit this testimony regarding the degree of force employed. 2 It could be argued that, notwithstanding the absence of injury, the jury should have found Tarquinio liable for nominal damages on the excessive force claim. However, plaintiff has not made such a motion, and the issue has been waived. about posting bail to which Tar refingerprinted [plaintiff and] retook [his] Tr. 363. 3

The additional charge emanated from detectives; Tarquinio Tr. 160. The charge purportedly in violation of Penal Law § 120.05(3). Tr. 204.

Unlike the instrument charging Obstructing Government Administration, the Felony Complaint charging plaintiff with Second Degree Assault bears little resemblance to the underlying facts. The statute provides that a person violates that statute when:

With intent to prevent [ ] a police officer [ ] from performing a lawful duty, by means including releasing or failing to control an animal under circumstances evincing the actor's intent that the animal obstruct the lawful activity of such [ ] police officer, he or she causes physical injury to such [ ] police officer. N.Y. PENAL LAW § 120.05(3). The Felony Complaint tracks the statutory language, then sets forth the following:

The defendant . . . with the intent to prevent a police officer from performing a lawful duty, by means including releasing or failing to control an animal under of such police officer, he caused physical injury to such police officer; in that, with intent to prevent Glenn Tarquinio, a police officer, from performing a lawful duty, namely arresting [plaintiff] for obstructing governmental administration, defendant caused physical injury to P.O. Tarquinio by flailing his arms, pulling away and wrestling with the officer, injuring the officers [sic] lower back, right knee and left elbow that caused substantial pain and required medical attention . . . . DE 165-17 at 2-3 (text in lowercase for ease of reading). The Felony Complaint, like the misdemeanor charging instruments, was signed under oath by Tarquinio, though written by detectives with his assistance. Id.; Tr. 39, 97-99, 202, 221 22. At trial, the evidence established

3 The need to fingerprint and photograph plaintiff a second time almost immediately after completing that process was never explained but gives rise to inferences Tarquinio acted maliciously in bringing the felony assault charge against plaintiff. that, despite several references, there was no animal involved in the situation, Tr. 226, nor could In fact, the contact between them began when, face, knocking Tr. 61, 142. When asked to describe the physical force

used against him by plaintiff, Tarquinio identified plaintiff as:

[F]lailing his arms and denying me access to his hands to place them behind his back [and] his reluctance to allow me to place him -- place him in handcuffs. Tr. 196. elbow, back ke Tr. 205, 145 46. 4 Eventually, the felony charge and one of the misdemeanors were dismissed; the remaining charge was resolved through a 60-day adjournment in contemplation of dismissal. Tr. 375. Counsel for Tarquinio argues, without much analysis, that the evidence does not support nio lacked probable cause to bring certain charges. DE 165-9 at 43. felony charge, warranting the application of doctrine of qualified immunity. Id. These

arguments are based on a severely circumscribed view of the evidence, i.e. limiting review of the record to the account provided by Tarquinio an account the jury was free to accept or reject. For example, counsel argues that there was probable cause, or at least arguable probable cause, to prosecute plaintiff for second deg -9 at 47-

48. But that purported

4 i Wrestling, Oxford English Dictionary, https://www.oed.com/dictionary/wrestling (last visited Mar. 19, 2024). contains sworn testimony from two other witnesses that these actions simply did not occur.

ing to handcuff him. See, e.g., Tr. 142 44, 196, 225 (Tarquinio testimony). In her summation to the jury, . . . his flailing, yes, Officer Tarquinio slapped him in the face knocking his glasses off in order to attain his Yet the testimony of Brittany Barton, the 911 complainant, directly contradicts this account:

Q. When you say covering his face, he wasn t flailing his arms around? A. No. He was covering his face like this (indicating.) Q. He wasn t throwing punches back? A. No, not at all.

Q. At any point during this, does Mr. McDevitt flail his arms? A. No. He s still protecting his face. Q. And why is he protecting his face? A. Because he s being hit. Tr. 244 45. According to Barton and plaintiff, Tarquinio attacked plaintiff without justification and with little provocation, and plaintiff did not resist the arrest. Tr. 241 43, 336 38. Therefore ield Tarquinio from liability based on qualified immunity, would require the wholesale rejection of the credibility determinations made complete rejection of the testimony of plaintiff and a corroborating third-party implicit invitation to do so. Thus, motion for relief under Rules 50 and 59 based upon the purported existence of probable cause or arguable probable cause warranting the application of qualified immunity 5

is denied. Damages and the Motion for Remittitur Based on its findings, the jury determined that Tarquinio was liable to the plaintiff for compensatory damages of $150,000 and punitive damages of $450,000, for an aggregate total of $600,000. Defendants claim that both sums are excessive and seek remittitur reducing the amount awarded or a new trial under Rule 59. Plaintiff opposes, but concedes that remittitur is appropriate and suggests reducing punitive damages to $400,000. DE 165-21 at 28.

Thus, the parties are agreed on one thing: remittitur is appropriate to some degree. The

remittitur granting remittitur only to the maximum amount that would be upheld by the district Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 672 (2d Cir. 2012) (collecting cases). As set forth below, the Court has endeavored to do so.

Compensatory Damages Defendants challenge -9 at

51. In some senses, defense counsel is correct, as evidence of out-of-pocket damages emanating from the malicious prosecution charge is limited to this figure. In making its argument, though, defendants counsel fails to account for an important element of compensatory damages: mental

5 In the circumstances presented here, where the jury found that plaintiff proved that Tarquinio had (1) used excessive force in connection with the arrest; (2) lacked probable cause in connection with the prosecution and (3) acted with malice in bringing certain charges findings well supported by the record it would seem particularly unseemly to apply the doctrine of qualified immunity. those who are not worthy of the mantle of office [are] precluded from claiming the protection of qualified immunity. Moore v. Andreno, 505 F.3d 203, 214 (2d Cir. 2007) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). pain and suffering sustained by the plaintiff from unwarranted incarceration.

After the filing of the felony complaint, plaintiff was held in jail overnight. Tr. 367. There is an inference that arises that the filing of a baseless charge may have resulted in an additional period of compensatory damages. As noted, Officer Sanchez, while transporting plaintiff to the police

station, suggested that he would qualify for bail by posting $500. 6

Tr. 350. That occurred at approximately 2:00 p.m. Tr. 85. After both Tarquinio and plaintiff returned from the hospital (each was from about 5:15 p.m. until 7:36 p.m. Tr. 183. Early in the morning, he was transported to the County Court, where [him] Tr. 369, 550 (plaintiff transpor court), id. at 552 (plaintiff searched at 9:37 a.m. in anticipation of arraignment). At the arraignment, he was released on his own recognizance. Tr. 373. While the precise time of his release is not clear, it can be reason extended from 5:15 p.m. until approximately 11:15 a.m., for a total of about 18 hours. The emotional impact of 18 hours of incarceration, then, represents the only other competent evidence of compensable damages arising from the malicious prosecution count. How should the value of 18 hours of additional, unwarranted incarceration be fixed? In trying to ascertain a reasonable range, the opinion in Medina v. City of New York, No. 20 Civ. 797 (VEC)(SLC), 2022 WL 675977, at *8 (S.D.N.Y. Jan. 12, 2022), adopted by, No. 20-CV- 797 (VEC), 2022 WL 354662 (S.D.N.Y. Feb. 7, 2022), which draws on the decision in Francis

6 It is conceivable that Sanchez was wrong, and the plaintiff would not have obtained bail that day. However, in an will assume, for the pur time in custody, a fact which Tarquinio implicitly acknowledged. Tr. 165- more charges now, so we had to rebook you), id. at v. City of New York, No. 15-CV-7997 (VSB)(KHP), 2019 WL 8918743, at *8 (S.D.N.Y. Nov. 12, 2019), proves helpful. While not a remittitur case, Medina involved the improper 18-hour detention of a plaintiff who, like plaintiff here, was not physically harmed in custody and offered 8

[] described in vague or conclusory terms, without presenting evidence of the duration, severity

or consequences of the condition, and [with] 9 2022 WL 675977, at *8 (internal quotations omitted). The Court in Medina adopted a formula from Francis that awarded $2,000 per hour (adjusted for inflation) unnecessary incarceration. Francis, a remittitur case in which the district court endeavored to s award to the maximum amount that would not be excessive, 8918743, at *8 (quoting Thomas v. iStar Fin., Inc., 508 F. Supp. 2d 252, 261 (S.D.N.Y. 2007)),

examined the range of reasonable outcomes in a similar fact scenario and devised the $2,000 per hour figure. Adjusted for inflation, in the instant case, the Francis-Medina formula would yield an hourly damages rate of approximately $2,400 which, for 18 hours, yields an award of $43,200. This figure could well represent a reasonable award for mental anguish in these circumstances. 10

However, there are case-specific facts unique to this matter that provide further insight.

8 Even where the trial court found a plaintiff had suffered more than garden variety emotional distress, the Circuit Stampf v. Long Island R. Co., 761 F.3d 192, 207 (2d Cir. 2014). 9 While plaintiff offered some testimony about medical treatment, the evidence only related in small measure to the malicious prosecution damages and emanated in much larger respect to prior emotional issues and the fallout from alleged excessive force. Tr. 381-2; 395ff. 10 Both Francis and Medina awarded an additional sum of $10,000 representing emotional damages in addition to the mental anguish while in custody. See Francis, 2019 WL 8918743, at *8-9; Medina, 2022 WL 675977, at *8. The Court finds post- initial incarceration was warranted, so the award is for a period of ancillary detention, which should be valued differently from a false imprisonment situation, and (3) the case-specific analysis that follows. As noted, plaintiff paid a criminal attorney approximately $30,000 to defend him against the charges. Tr. 375. Added to this, plaintiff testified that he paid between $500 and $600 per year in out-of-pocket expenses for mental health treatment from 2014 through 2023. Tr. 383. At $550 per year for nine years, this would amount to an additional $4,500. From this, counsel concludes that the difference between these two out-of-pocket figures and the amount

sel concludes that the jury awarded -21 at 27.

However, this conclusion ignores the nature of the evidence presented and highlights one of the problems faced by the jury in calculating damages. The trial included presentation of evidence for damages allegedly suffered by plaintiff in connection with his claims of false arrest (which he failed to establish), excessive force (established, but plaintiff failed to establish damages connected therewith) and malicious prosecution. Because plaintiff failed to segregate the damages arising from these various theories, the evidence of damages was, in the main,

Q: Can you tell the jury how the processing of these accusatory instruments by Mr. Tarquinio impacted you? A: I haven t worked as a contractor. I had to get on Social Security disability. I get about $600 a month they give me to live on. Thank God for my brother who helped me out. . . . Q: When you say it came to April 2nd that was it, tell the jury, because there s no broken bones here, alright, what happened to you? What changed your life? A: Well, I can t lift anything heavy. I used to do, you know, demolition. I used to do kitchens and bathrooms. I can t lift kitchen cabinets anymore. I can t get down on my knees and start doing tile, I can t. I can t do it anymore. I can t lift. I m in pain all the time. Tr. 376 77. In this manner, licited by his counsel, unfairly conflated compensatory damages arising from the physical injuries he claimed, but failed to prove, arising from excessive force during the arrest with the injuries attributable to the malicious prosecution and resulting extended period of detention.

In particular, plaintiff testified to losses of $75,000 in connection with repairs made to his house, which he claimed he was no longer physically able to make himself. Tr. 387-88, 671 (counsel arguing this sum to jury). When asked to provide specific losses arising from his claims, plaintiff testified as follows:

Q: Can you tell us anything else about the quality of life that has changed after from April 1, 2014 to April 2, 2014, what has changed in your everyday life? . . . A: Well, I had a house that I invested in before April. I had gutted the whole thing. 2013 I started redoing the house, all new windows, everything, and then the beating happened. I couldn t work on the house anymore. [] I had to hire people to do what I used to be able to do, put siding on the house, put a new roof on the house. I can t do it, and it cost me $75,000 for a roof and siding. Tr. 387. $75,000 for repairing the house along with the $30,000 paid to criminal defense counsel and $4,500 for mental health

treatment as -of- Tr. 387. Thus, it seems a virtual certainty that the jury included the $75,000 in home repairs in its calculation of compensatory damages of $150,000. The problem is, of course, that nothing to do with the malicious prosecution claim, rather, this item related solely to damages arising from the excessive force allegations, which damages, the jury found, plaintiff failed to establish.

Deducting th net compensatory award of $75,000. As the other specified items of damage, to wit: criminal defense fees and mental health treatment, total $34,500, the resulting award would effectively provide $40,700 for emotional distress-related damages from his additional time in custody. The $43,200 generated by the Francis-Medina formula bears notable similarity to this outcome, confirming the . Thus, assuming plaintiff agrees to remittitur rather than a new trial, the compensatory damages in the matter will be reduced to the aggregate amount of $77,700, consisting of the proven out-of-pocket expenses plus the emotional distress damages calculated using the Francis-Medina formula.

Punitive Damages In connection with considering remittitur of a punitive award, the Second Circuit has observed:

In reviewing an award for punitive damages in Payne objective standard exists that justifies the award of one amount, as opposed to

for the injuries, for the purpose of punishing the defendant, of teaching the defendant not to do it again, and of deterring others from following the defendant s Prosser and Keeton on the Law of Torts § 2, at 9 (5th ed.1984). They Payne, 711 F.3d at 93. as to punitive damages conform, insofar as reasonably practicable, to [the Payne, 711 F.3d at 96. [ ] punitive damage awards: (1) the degree of reprehensibility of the defendant s conduct, (2) the ratio of punitive damages to the actual harm inflicted, and (3 difference between this remedy and the civil penalties authorized or imposed in BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). [ ] Thus, we consider whether Stampf s award for punitive damages is excessive in light of judges greater familiarity than juries with norms for punitive damages, federal appellate courts considerable supervisory authority when reviewing district courts rulings as to the excessiveness of a jury s punitive damages award, and the three guideposts set forth by the Supreme Court in Gore. Stampf v. Long Island R. Co., 761 F.3d 192, 209 (2d Cir. 2014). Of course, the situation here is slightly different. As noted, plaintiff agrees to some level of reduction, suggesting that, rather than the $450,000 imposed by the jury, $400,000 would be appropriate. The question before this Court, then, turns on the appropriate amount by which the punitive award should be reduced, rather than whether the punitive award should be reduced. Nevertheless, the Gore factors provide - guideposts. Jennings v. Yurkiw, 18 F.4th 383, 390 (2d Cir. 2021).

1. Degree of Reprehensibility

As the Second Circuit has explained: In Gore, damages. 517 U.S. at 575, 116 S.Ct. 1589. There, the Court identified certain

Id. at 575 76, 116 S.Ct. 1589. Those aggravating factors include: (1) whether a defendant s conduct was marked by violence or presented a threat of violence, (2) whether a defendant s conduct evinced trickery or deceit as opposed to mere negligence, and (3) whether the record supports a finding of intentional malice. Id. Jennings, 18 F.4th at 390.

As to the first aggravating factor, the challenged punitive award relates solely to malicious prosecution claim, emanating from acts which, though highly reprehensible, Id. [ ] that physical assaults generally demonstrate a higher degree of reprehensibility than nonviolent Patterson v. Balsamico, 440 F.3d 104, 121 (2d Cir. 2006) (citing Gore, 517 U.S. at 575 76). At the same time, however, the jury found that Tarquinio employed excessive force, though found that plaintiff failed to establish any injury emanating therefrom.

These procedural complexities in this malicious prosecution case makes comparable cases somewhat scarce. Fortunately, Lee v. Edwards, 101 F.3d 805 (2d Cir. 1996) provides a powerful exception. In Lee, al for tactical reasons. Id. at 810 n.3. Lee noted and that although plemented merely by an

entry on a form, [ ] that act nevertheless had the power to set into motion the coercive apparatus Lee, 101 F.3d at 810. Similar considerations apply here.

The applicability of the remaining aggravating factors is easily determined. The second aggravating factor use of deceit or trickery felony charge here was aided by sworn false statements including references to descriptions in

Tarquinio plainly implicating See Jennings, 18 F.4th at 391 (in

considering reprehensible nature of defendan the enforcement officers represent a pernicious evil. That Tarquinio continued to testify falsely at

trial further establishes the disgraceful nature of his conduct. See, e.g., Tr. 54-55. As in Lee, See 101 F.3d at 810. Indeed, the jury not only determined that Tarquinio acted without probable cause in bringing charges giving rise to an inference of malice but specifically found that defendant had acted with malice. See Rentas v. Ruffin, 816 F.3d 214, 221 (2d Cir. 2016) [A]ctual malice can be inferred when a plaintiff is

Gore to justify some level of punitive damages.

2. Ratio

Here, compensatory award of $150,000. It seems likely that this represents something more than a coincidence the jury attempted to award treble damages. Having found that the compensatory award also warrants remittitur. See Tretola v. Cnty. of Nassau, 14 F. Supp. 3d 58, 86 (E.D.N.Y.

2014) he analysis, though, involves more than a formula. See Stampf, 761 F.3d at 210 Court explained in Gore constitutionally acceptable and unacceptable ratios for punitive damages. .

l Dynamite Mktg., Inc. v. Wowline Inc., 2023 WL 8358061, No. 19-CV-3067 (GRB)(AYS), at *8 (E.D.N.Y. Dec. 1, 2023) (citing Gore, 517 U.S. at 581) (cataloging legislative provisions for double, triple or quadruple punitive damages).

but does not end the analysis. Since the compensatory award is neither nominal nor i DiSorbo v. Hoy, 343 F.3d 172, 187 (2d Cir. 2003) (internal quotations omitted).

3. Penalties for Comparable Misconduct

The third Gore Id. The rationale for this consideration is that, if the penalties for comparable misconduct are much less than a punitive damages award, the tortfeasor lacked fair notice that the wrongful conduct could entail a sizable punitive damages award. Id.

Nearly a decade ago, this Court identified a common problem with analyses of this factor: the use of state law criminal provisions as the appropriate point of comparison. Anderson v. Aparicio, 25 F. Supp. 3d 303, 312 (E.D.N.Y. 2014), aff d and remanded sub nom. Anderson v. Cnty. of Suffolk, [D]ecisions have uniformly expressed frustration with the use of state misdemeanor criminal penalties as a benchmark for evaluating an excessive force punitive award [because] the conduct defined by these criminal statutes is qualitatively different when committed as an abuse of official authority [and] the relatively modest fines associated with state misdemeanor offenses do not provide a useful benchmark for evaluating punitive awards assessed against law enforcement officers. . Anderson posited reference to criminal penalties for civil rights offenses as a useful measure. Id. imposes punitive damages for a violation of § 1983, the penalties imposed under federal criminal law for similar offenses provide an excellent metric for evaluation of excessiveness. And, indeed, federal criminal law offers a highly analogous provision for deprivation of rights under color of law. cf. Stratakos v. Nassau Cnty., No. 15-CV-7244 (GRB), 2021 WL 2587722, at *13 (E.D.N.Y. June 24, 2021) (explaining that

The Second Circuit has since adopted this approach. See Jennings, 18 F.4th at 393 Where a jury imposes punitive damages for a violation of § 1983, the penalties imposed under federal criminal law offer a useful comparison. see also Magalios v. Peralta, No. 19-CV-6188 (CS), 2022 WL 407403, at *5 (S.D.N.Y. Feb. 10, 2022) (citing Jennings and Anderson), aff d, No. 22-519-PR, 2023 WL 4618349 (2d Cir. July 19, 2023). Thus, in evaluating a punitive award, the Court looks to 18 U.S.C. § 242 which provides, in relevant part, as follows:

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State [ ] to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States [ ] shall be fined under this title or imprisoned not more than one year, or both. This statute carries up to one year of imprisonment (rendering it a Class A misdemeanor) or a fine of up to $100,000. 18 U.S.C. §§ 3581, 3571(b)(5). These penalties are substantial, even if of smaller magnitude than those considered in Jennings and Anderson, as the conduct here did not result in any bodily injury. penalties understate the notice when the misconduct is committed by a police officer [because the defendant officer s] training as a police officer gave him notice as to the gravity of misconduct under color of his official authority, as well as notice that such misconduct could DiSorbo, 343 F.3d at 188 (internal quotations omitted). That the relevant criminal statute provides for a fine of up to $100,000 suggests that the

mittitur. Notably, in Lee, the Second Circuit compared the $200,000 in punitive damages awarded by the jury to the penalties for a state misdemeanor offense which imposed up to one year in prison and a $2,000 fine f $2,000 gives little warning that the offense 101 F.3d at 811 (2d Cir. 1996) (reducing the award to $75,000). Even considering the more expansive penalty under § 242, the existing penalties do not provide adequate notice for a $450,000 punitive award. Totality of the Gore Factor Analysis

All three Gore factors, as well as the reduction of compensatory damages discussed

reasonableness, calling for a reduction.

[the Court] assess[es] such DiSorbo, 343 F.3d at 188. Again, for the reasons noted, Lee provides an important benchmark. In that case, the Second Circuit considered remittitur of a $200,000 punitive damages award on a malicious prosecution claim in a case with important factual similarities to the instant matter. The Circuit concluded, after applying the Gore factors, that a $125,000 reduction was appropriate, leaving a punitive award of $75,000 (approximately $150,000 in 2024 dollars). Unlike Lee, though, in which involved a nominal damages award, here the compensatory damages are more substantial.

Considering all of these factors together suggests a punitive award ranging from an amount equal to the compensatory damages of $77,700, to twice that figure, or $155,400. ast intrusive standard for calculating a

ting the jury s award only to the maximum amount that would be Martinez v. The Port Auth. of New York & New Jersey, 445 F.3d 158, 160 (2d Cir. 2006) (quoting Earl v. Bouchard Transp. Co., 917 F.2d 1320, 1330 (2d Cir. 1990)), this Court will adopt the high end of this range $155,400 as the punitive award. This figure proves consistent with the guideposts set by Gore. As noted, though not involving violence, the acts giving rise to the malicious prosecution finding are sufficiently egregious to warrant a significant punitive award. Second, a 2:1 ratio in this case is consistent with the tradition of awarding small multiples of actual damages as a punitive measure, and also notice concerns of the third Gore factor, as defendant Tarquinio could have faced a $100,000

criminal fine plus up to a year in jail under federal law for the actions described herein. Finally, Lee, which, in current dollars, would amount to approximately $150,000. Based on the foregoing, defendants motion for a new trial is granted on the issue of damages unless plaintiff agrees to a remittitur reducing the compensatory damage award to $77,700 and the punitive damage award to $155,400, 11

amounting to a total award of $233,100. Suffolk County s Motion Challenging the Monell Verdict A week after the jury rendered a verdict against Tarquinio, trial continued concerning Monell as against the County, which claims had been bifurcated. Tarquinio was recalled by the plaintiff, and inquiry was made into his background, specifically relating to Internal Affairs investigations. Tr. 859. In one instance, Tarquinio had failed to make an arrest and to record required information in a memo book. Tr. 870. Another involved his provision of information to an off-duty officer. Tr. 872. He was also the subject of two excessive force complaints. Tr. 876. He further testified that the police department maintains an

11 In urging this Court to reduce the punitive damage award, counsel for Suffolk County makes the curious DE 165-9 at 52 (citing Payne, 711 F.3d at 95) The burden of punitive damages [ ] does not even [ ] fall on the wrongdoer [who] receives indemnification. In fact, New York public policy prohibits municipal indemnification for punitive damages in a § 1983 action. See Suffolk Cnty. Patrolmen s Benevolent Ass n, Inc. v. Suffolk Cnty., 595 F. Supp. 1471, 1480 (E.D.N.Y. 1984), af 751 F.2d 550 (2d Cir. 1985); see also Hartford Acc. & Indem. Co. v. Vill. of Hempstead, 48 N.Y.2d 218, 228, 397 [W]e conclude that the rule to be applied with respect to a punitive damage award made in a Civil Rights Act action is that coverage is proscribed as a matter of public policy. We reach that conclusion primarily because to allow insurance coverage is totally to defeat the purpose of punitive damages. . Since Suffolk County has chosen to indemnify its officers against § 1983 punitive damages awards, in seeming violation of New York s public policy, the County cannot rely on this decision as a basis to reduce such awards. excessive force policy, but he was unaware of any officers disciplined under that policy. Tr. 919.

Inquiry turned to James Burke, the former police chief of Suffolk County. Tr. 920; see also United States v. McPartland, 81 F.4th 101, 107 (2d Cir. 2023). Tarquinio testified, somewhat less than credibly, that he was unfamiliar with the event plea of guilty to civil rights violations. Id. Tarquinio testified that the force he used in arresting plaintiff was consistent with the training provided by and practices of the Suffolk Police Departmen. Tr. 921. Plaintiff then offered testimony which, even when competent, was entirely irrelevant.

which was admitted against a detainee. Plaintiff rested, and defendant offered no further evidence regarding the

Monell claim. After a brief deliberation, the jury returned with a verdict, finding that Suffolk County maintained a custom, pattern, practice or policy that led to the deprivation of p constitutional rights, answering interrogatories that the County failed to properly train or

supervise its employees, and finding ratification of acts of malicious prosecution by a policy maker. See DE 152.

Monell theory is based on a finding of excessive force for which the jury DE 165-9 at 49. As a result, the County has failed to establish by a preponderance of the evidence that a custom, practice or policy of the County resulted in prosecution by Tarquinio Id. Plaintiff makes no response to the argument effectively abandoning the position found resulted in no injury, was the result of ineffective training and supervision. See DE 165-21

at 14. The problem, as defendants correctly argue, is that a searching review of the record shows Nor can plaintiff point to any evidence of ratification of the malicious prosecution by a policy maker. 12

While the evidence submitted by plaintiff might have supported a Monell pattern involving the use of excessive force (and it well may not), there is not even a colorable argument that the evidence supports a custom, pattern, practice, policy or ratification that in any way relates to malicious prosecution. See Crews v. Cnty. of Nassau, 149 F. Supp. 3d 287, 296 (E.D.N.Y. 2015) laintiff did not offer any other evidence to draw an affirmative link between the failure to train and his constitutional injury ); see also City of Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985)) ( At the very least there must be an affirmative link between the policy and the particular constitutional violation . Given the freewheeling manner in which counsel conflated these elements throughout both phases of the trial, as well as the reprehensible conduct by defendant Tarquinio

for judgment as a matter of law under Rule 50(b) as to the Monell verdict is granted. Pursuant to Rule 50(c), the Court finds that, if this judgment is later the weight of the evidence.

Conclusion For the reasons set forth herein:

1. motion for relief under Rules 50 and 59 based upon the purported

existence of probable cause or arguable probable cause warranting the application of

12 Though the record shows that others within the County government such as the detectives and members of the descriptions of the incident (later revealed to be apparently false), the charges were not facially specious, and therefore there is no demonstration of ratification.

qualified immunity is DENIED. 2. for a new trial is GRANTED on the issue of damages UNLESS

plaintiff agrees to a remittitur reducing the compensatory damage award to $77,700 and the punitive damage award to $155,400, for a total award of $233,100. 3. for judgment as a matter of law as to the Monell verdict is

GRANTED. s counsel and the Court within ten days of the date of this Order as to whether he intends to accept the remittitur, or if a date should be set for a retrial on damages. SO ORDERED. Dated: Central Islip, New York

March 26, 2024

McDevitt v. Suffolk County et al | E.D. New York | 03-26-2024 | www.anylaw.com (2024)
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