police4aqi

Police, The Fourth Amendment, Qualified Immunity

Nassau County Officer Eric Faltings is called “fucking asshole,” interesting legal case ensues

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Case: TRETOLA v. County of Nassau, Dist. Court, ED New York 2014

Comment: This entire case is interesting for many reasons and I recommend reading the entire opinion. In this blog entry I will block quote only the “punitive damages” portion, which is lengthy in and of itself. I am not that familiar with punitive damages law, but the court’s approach seemed a bit odd to me. I am a bit doubtful that the award, as reduced by the court in the instant case, will really change the way Nassau County, and other counties, treat these kinds of situations, but I can see how reasonable people could feel different.

Quote:

D. Jury’s $2,000,000 Award for Punitive Damages Also Shocks the Judicial Conscience

i) Applicable Law

A jury may “assess punitive damages in an action under § 1983 when the defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protective rights of others.” DiSorbo v. Hoy, 343 F.3d 172, 186 (2d Cir. 2003)(internal quotation marks and citation omitted). The purpose of punitive damages is “to punish the defendant for his willful or malicious conduct and to deter others from similar behavior.” Sulkowska, 129 F. Supp. 2d at 309 (quoting Memphis Cmty. School Dist. v. Stachura, 477 U.S. 299, 307 n.9 (1986).

In BMW of North America v. Gore, 517 U.S. 559, 574-75 (1996), the Supreme Court set forth three guideposts to be considered when determining whether a punitive damage award is excessive, to wit (1) the degree of reprehensibility of the defendant’s conduct, (2) the ratio of punitive damages to the actual or potential harm inflicted on the plaintiff, and (3) civil and criminal penalties available for comparable misconduct.[17]

ii) Application of Gore Factors

a) Degree of Reprehensibility

“Perhaps the most important indicium of the reasonableness of punitive damages award is the degree of reprehensibility of the defendant’s conduct.” Gore, 517 U.S. at 575. Defendants maintain that Faltings’s conduct did not rise to the level of being sufficiently egregious to be deemed motivated by an evil motive or intent. (Defs.’ Mem. in Supp. at 29-30.) That argument is irreconcilable, however, with the voluminous evidence that was placed before the jury indicating that the events of May 9th and June 1st 2007 were intended to punish Tretola.

It is beyond legitimate dispute, construing all the evidence most favorably to plaintiff, that the first Gore factor has been satisfied.[18]

b) The Ratio Between the Compensatory and Punitive Damage Awards

The compensatory and punitive damage awards, as returned by the jury, do not raise disproportionality concerns under Gore. However, the $3,000,000 compensatory component of the $5,000,000 total award has been pared, subject to remittitur to $760,605. As a result, the latter figure has been considered in determining the highest amount of punitive damages that is compatible with the Court’s judicial conscience viewed through the prism of applicable Second Circuit law regarding appropriate “punitive award[s] against . . . individual police officer[s].” Payne v. Jones, 711 F.3d 85, 105 (2d Cir. 2013).

The relationship between the remittitur amounts for compensatory damages and for punitive damages as established infra is in sync with the second Gore guidepost.

c) Available Criminal or Civil Penalties for Like Conduct

Defendants maintain that “[t]here are no New York State civil or criminal penalties for a police officer found liable for civil rights violations for false arrest or malicious prosecution and thus, the third Gore factor is not applicable in this case.” (Defs.’ Mem. in Supp. at 33.) Plaintiff challenges the accuracy of that statement, citing Thomas v. Kelly, 903 F. Supp. 2d 237 (S.D.N.Y. 2012) for the proposition that Faltings’s conduct could support a prosecution for kidnapping in the second degree under New York Penal Law § 135.20 which carries a potential penalty of 25 years incarceration. (Pl.’s Mem. in Opp’n at 34; see also Thomas, 903 F. Supp. 2d at 268). However, plaintiff’s reliance on Thomas for the proposition urged is problematic. A perusal of that decision strongly suggests that Judge Carter predicated that portion of his analysis on the fact that defendant Kelly arranged to have plaintiff Thomas placed in a psychiatric facility in flagrant disregard of the statutorily established prerequisites for taking such action. It is not clear to me, however, that the retaliatory arrest and prosecution of Tretola fall within the kidnapping rationale articulated in Thomas. In essence, then, neither defendants nor plaintiff has assisted the Court as to the third Gore factor. For that reason, coupled with the fact that the Court is unaware of any germane civil or criminal penalties that could have been imposed for Faltings’s misconduct, it is assumed for present purposes that there are none.[19]

iii) The Jury’s $2,000,000 Punitive Damage Award is Reduced, via Remittitur, to $175,000

It cannot be legitimately disputed that the punitive damage award returned in this case is grossly excessive. Indeed, plaintiff’s counsel during summation — who, incidently, was a forceful and skilled advocate for Tretola — told the jury in anticipation of the Court’s charge on punitive damages:

[T]hose damages are designed not to compensate Marty but to prevent this from happening again, to send a message.
You have to determine how much those damages should be to carry out that function. Is it millions of dollars? No it is not. Obviously not.
Tr. at 917.

Plaintiff contends in his post-trial submission, however, that the punitive damages award should not be disturbed, at least “not to the extent sought by Defendants so as to send a message to similarly situated municipal officers and the tax payers who ultimately must foot the bill for the damage award that conduct similar to Faltings[‘s] against Tretola simply cannot be condoned.” (Pl.’s Mem. in Opp’n at 32-33.) A juxtapositioning of the purpose of punitive damages with the fact that Nassau County, not Faltings, will pay the sanction whatever it may be, lends credence to Tretola’s argument. Unless the award is sufficiently large to garner the attention of the officer’s supervisors and of the taxpaying public, and to trigger some type of meaningful response, its impact on the wrongdoer and on others of similar mind-set is likely to be either nonexistent or minimal, thus frustrating the very purpose of making the award in the first place. However, that argument may not be squared with established Second Circuit law. In that regard, defendants, after unsuccessfully urging that no punitive damages were warranted, note that the jury’s $2,000,000 award dwarfs the maximum amount ever approved by the Second Circuit in a police misconduct case. In making that argument, defendants understandably place considerable stock in Payne v. Jones, 711 F.3d 85 (2d Cir. 2013).[20]

The Circuit concluded in Payne that a $300,000 punitive award in an excessive force and battery suit against a defendant police officer was excessive and that any sum over $100,000 could not be sustained. In doing so, Judge Leval, writing for the panel, explained:

Our survey [of punitive damage awards in comparable cases] shows that we have never approved a punitive award against an individual police officer as large as the $300,000 award here. We have described awards ranging from $125.000 to $175,000 as “substantial,” King v. Macri, 993 F.2d 294, 299 (2d Cir. 1993), and we have ordered remittitur of awards as low as $75,000, see id. (reducing the award to $50,000); . . . . Moreover, in police misconduct cases in which we sustained awards around $150,000, see, e.g., Ismail [v. Cohen], 899 F.2d [183,] 187 [2d Cir. 1990], the wrongs at issue were more egregious than the misconduct of Jones.
Payne, 711 F.3d at 105.

The facts in Payne are synopsized in the Circuit opinion, construing the evidence “in the light most favorable to Payne [as] the prevailing party,” thusly:

Payne is a decorated Vietnam War veteran who suffers from severe post-traumatic stress disorder as a result of his military service. In the early morning hours of September 11, 2007, Payne was taken by his wife and son to the emergency room at Faxton-St. Luke’s Healthcare hospital afer accidentally cutting his thumb. Payne was combative and disoriented when he arrived at the emergency room.
Because of Payne’s combativeness, responding officers Brandon Jones and John Abel placed him under arrest pursuant to N.Y. Mental Hygiene Law § 9.41, which authorizes the arrest of a person who appears to be mentally ill and acts in a manner likely to result in serious harm to himself or others. The officers called for an ambulance to transport Payne to St. Elizabeth Medical Center, the nearby hospital assigned to receive people arrested under § 9.41. While a paramedic was examining Payne, Jones slapped the side of Payne’s head. After a struggle in which Payne resisted the officers’ efforts to handcuff him and place him on a gurney, Payne was loaded into the ambulance and taken to St. Elizabeth. Jones followed the ambulance in his squad car.
At St. Elizabeth, Payne resisted Jones’s efforts to move him from the ambulance gurney into an individual room in the emergency room’s mental health unit. Jones wrapped Payne in a bear hug and pushed him into the room. As Jones was placing Payne on the bed, he noticed Payne’s Marine Corps tattoos and said “Marines are pussies.” In response, Payne kicked Jones in the groin area. Jones reacted by punching Payne in the face and neck seven to ten times and kneeing him in the back several times. Payne, who was still handcuffed, defended himself by putting his hands up to cover his face and rolling on the bed to turn his back toward Jones. A nurse rushed forward and grabbed Jones, who then stopped punching Payne. The attack lasted 30 seconds or less. A doctor examined Payne and found that his face was bloody and swollen, that his upper back was reddened. Payne later testified at trial that the beating aggravated his existing back pain and his post traumatic stress disorder. There was no evidence of any other injury.
Id. at 88.

It is obvious from Payne that a drastic reduction of the jury’s $2,000,000 punitive damage award must be made. However, inter-case comparisons of the most important of the Gore factors, viz. the degree of reprehensibility, are difficult to draw. Yet, in my view, Faltings’s planned transgressions geared essentially to destroy Tretola were at least as sanctionable via a substantial punitive damage award as the dreadful, but unpremeditated misconduct by the defendant officer in Payne, and probably, more so. Accordingly, a punitive damage award in excess of the $100,000 sustained in Payne would be within the range of reasonableness. May the same be said as to a figure in the neighborhood of $150,000? As the reader will recall, the Circuit indicated that it had sustained awards of “around $150,000,” but that in those instances “the wrongs at issue were more egregious than the misconduct of Jones.” Id. at 105. Ismail v. Cohen, 899 F.2d 183 (2d Cir. 1990) is referenced by the Circuit as an example of such cases.

“In Ismail, a police officer struck the plaintiff in the back of the head following an argument over a parking citation written by the officer. The plaintiff briefly lost consciousness. When he awoke, he found that the officer was pressing a gun against his head and a knee into his back. Although doctors found that the plaintiff had suffered `two displaced vertebrae, a cracked rib and serious head trauma’ as a result of the officer’s action, the plaintiff spent more than two days in jail and was later tried, and acquitted, on three criminal counts stemming from the parking citation dispute. The district court had ruled that the jury’s award of $150,000 in punitive damages was excessive. [The Circuit] disagreed, reinstating the award.” Payne, 711 F.3d at 105 (internal cites omitted). Adjusting for inflation, $150,000 in 1990 was the equivalent of $263,497.32 in 2012.[21]

Finally, the Circuit in Payne, as part of its comparable decisions review discussed DiSorto v. Hoy, 343 F.3d 172 (2d Cir. 2003), categorizating it as the “case most helpful to our analysis.” Payne, 711 F.3d at 106. DiSorbo, like here, involved retaliatory police misconduct. The relevant facts as outlined in Payne are as follows:

The plaintiff was a woman who was arrested by the defendant police officer without just cause in retaliation for having spurned his advances at a bar. At the police station, the defendant slammed the plaintiff into the entry door and then pushed her against a wall, grabbing her throat and choking her. When she tried to defend herself by kicking the defendant, he responded by throwing her to the ground and striking her repeatedly. The attack left bruises on the plaintiff’s head, shoulder, and hands, but did not cause any permanent scarring or nerve damage. The jury awarded punitive damages of $1,275 million. We reduced the award to $75,000. It would be impossible to reconcile the $300,000 punitive award against Jones for his less reprehensible conduct with the reduction of the DiSorbo award to $75,000.[22]
Payne, 711 F.3d at 106.

Endeavoring to calibrate hideous behavior for punitive damage comparative purposes is a necessarily challenging and imprecise task. But although Payne, of course, does not establish a cap on such awards against police officers, its holding and rationale cautions against the trier-of-fact, and reviewing district courts, from having their decisions largely driven by subjective reactions to troubling conduct rather than by applicable Second Circuit law. Faltings’s carefully orchestrated and extended conduct is, in my judgment, within the same range of egregiousness as that of the officers in Ismail and DiSorbo.

In any event, having considered the Gore factors, as well as awards in comparable cases including those discussed above, I find that a punitive damages award of $175,000 is the maximum sum compatible with the judicial conscience.

Written by Burgers Allday

April 26, 2014 at 10:15 am

Posted in Uncategorized

One Response

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  1. Why has gotten away with all of this?

    marsha lane

    September 22, 2014 at 10:52 am


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