The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MARIO FRANCO,
Plaintiff,
v. 5:16-CV-634
(FJS/TWD)
POLICE OFFICER JOHN GUNSALUS and
POLICE OFFICER SHAWN KELLEY,
Defendants.
APPEARANCES OF COUNSEL
THE LAW OFFICE OF FRED FRED B. LICHTMACHER, ESQ.
LICHTMACHER, P.C.
116 West 23rd Street
Suite 500
New York, New York 10011
Attorneys for Plaintiff
BERGSTEIN & ULLRICH, ESQ. STEPHEN BERGSTEIN, ESQ.
5 Paradies Lane
New Paltz, New York 12561
Attorneys for Plaintiff
HANCOCK ESTABROOK LLP JOHN G. POWERS, ESQ.
1800 AXA Tower I MARY L. D'AGOSTINO, ESQ.
100 Madison Street
Syracuse, New York 13202
Attorneys for Defendants
OFFICE OF THE CORPORATION TODD M. LONG, ESQ.
COUNSEL – CITY OF SYRACUSE DANIELLE B. PIRES, ESQ.
233 East Washington Street
Room 300
Syracuse, New York 13202
Attorneys for Defendants
SCULLIN, Senior Judge
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION AND BACKGROUND
Plaintiff commenced this action in June 2016 alleging claims against the City of
Syracuse and Defendants John Gunsalus and Shawn Kelley (hereinafter collectively referred to
as Defendants) alleging that they violated his constitutional rights by using excessive force,
failing to intervene, falsely arresting him, and maliciously prosecuting him, among other things.
See Dkt. No. 1, Compl., at ¶¶ 24-72. The allegations arose out of an incident in July 2014,
when Defendants arrested Plaintiff while he was outside of a party on Victoria Place, near the
Syracuse University campus. See id. at ¶¶ 10-23. Plaintiff's failure to intervene claim against
Defendant Kelly and his false arrest, excessive force, and malicious prosecution claims against
both Defendants survived Defendants' motion for summary judgment. See Dkt. No. 87.
During the trial, Plaintiff presented evidence from seven witnesses and introduced nine
exhibits, and Defendants presented evidence from eight witnesses and introduced more than
thirty exhibits. The jury returned a verdict on the sixth day of trial, July 20, 2021, finding
Defendant Gunsalus liable for false arrest, use of excessive force, and malicious prosecution.
See Dkt. No. 172 at 1-2. The jury also found Defendant Kelley liable for false arrest but did not
find him liable for failure to intervene or malicious prosecution. See id. at 2. In response to
various special interrogatories, the jury found that Defendants did not prove, by a
preponderance of the evidence, that (1) Plaintiff ignored verbal commands from Defendant
Gunsalus to leave the roadway on Victoria Place; (2) Defendant Gunsalus was identifiable as a
police officer when he approached Plaintiff; (3) Defendant Gunsalus had a justifiable belief that
Plaintiff had observed lights on the police vehicle or heard the instructions via the intercom to
disperse; (4) Plaintiff exerted some pressure on Defendant Gunsalus – either pushing or pulling
– by placing his hands on Defendant Gunsalus's uniform sleeves or upper arms; and (5)
Defendant Gunsalus struck Plaintiff only once in the head and once in the body. See Dkt. No.
173 at 1-2. On the issue of damages, the jury awarded Plaintiff $5,000 in compensatory
damages as a result of Defendant Gunsalus's actions and $1.00 in nominal damages as a result
of Defendant Kelley's actions. See Dkt. No. 172 at 3-4.
On August 17, 2021, Plaintiff filed the pending motion for a new trial on punitive
damages pursuant to Rule 59(a)(1) of the Federal Rules of Civil Procedure. See Dkt. No. 187.
If the Court grants that motion, Plaintiff further asks, pursuant to Rule 37, that the Court permit
him to introduce evidence at the new trial that Defendant Gunsalus placed a hard object against
Plaintiff's throat shortly before subjecting him to the use of excessive force. See id.
Less than a week later, on August 23, 2021, Defendants filed the pending motion for
judgment as a matter of law ("JMOL") pursuant to Rule 50(b) or, in the alternative, for a new
trial pursuant to Rule 59. See Dkt. No. 192. Defendants additionally requested the Court's
ruling on the affirmative defense of qualified immunity. See Dkt. No. 194, Def's Memorandum
in Support of JMOL, at 6.
II. DISCUSSION
A. Defendants' motion for judgment as a matter of law
"'To warrant post-verdict judgment as a matter of law, the movant must show that the
evidence, when viewed most favorably to the non-movant, was insufficient to permit a
reasonable juror to have found in the non-movant's favor.'" Moore v. Keller, No. 5:16-CV-
1230, 2021 U.S. Dist. LEXIS 168700, *4 (N.D.N.Y. Sept. 7, 2021) (Hurd, J.) (quoting Conte v.
Emmons, 895 F.3d 168, 171 (2d Cir. 2018)). "This is a 'particularly heavy burden where, as
here, the jury has deliberated in the case and actually returned its verdict in favor of the non-
movant.'" Carroll v. Cnty. of Monroe, 712 F.3d 649, 651 (2d Cir. 2013) (quoting Cash v. Cnty.
of Erie, 654 F.3d 324, 333 (2d Cir. 2011) (internal quotation marks omitted)). "Therefore, [the
court] may set aside a verdict 'only if there exists such a complete absence of evidence
supporting the verdict that the jury's findings could only have been the result of sheer surmise
and conjecture, or the evidence in favor of the movant is so overwhelming that reasonable and
fair minded persons could not arrive at a verdict against it.'" Id. (quoting [Cash, 654 F.3d at
333] (internal quotation marks omitted)).
Defendants claim that they are entitled to JMOL both based on the facts and evidence
established at trial and on the issue of qualified immunity, an affirmative defense they had
previously raised and on which the Court reserved judgment. "'Qualified immunity shields
federal and state officials from money damages unless a plaintiff pleads facts showing (1) that
the official violated a statutory or constitutional right, and (2) that the right was "clearly
established" at the time of the challenged conduct.'" Ricciuti v. Gyzenis, 834 F.3d 162, 167 (2d
Cir. 2016) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S. Ct. 2074, 179 L. Ed. 2d 1149
(2011) (citation omitted)) (other citation omitted). Even if the right was clearly established, a
defendant is entitled to qualified immunity if "'it was objectively reasonable for the [official] to
believe the conduct at issue was lawful.'" Rodriquez v. McKoy, No. 9:15-CV-0610
(MAD/TWD), 2021 U.S. Dist. LEXIS 195917, *30 (N.D.N.Y. Oct. 12, 2021) (D'Agostino, J.)
(quoting Phillips v. Wright, 553 Fed. Appx. 16, 17 (2d Cir. 2014)) (other citation omitted).
1. Whether Defendants are entitled to JMOL or qualified immunity on Plaintiff's
false arrest claim
"Under New York law, an action for false arrest requires that the plaintiff show that '(1)
the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3)
the plaintiff did not consent to the confinement and (4) the confinement was not otherwise
privileged.'" Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012) (quoting
Broughton v. State of New York, 37 N.Y.2d 451, 456, 335 N.E.2d 310, 373 N.Y.S.2d 87
(1975)). "Probable cause 'is a complete defense to an action for false arrest' brought under New
York law or § 1983." Id. (quoting Weyant, 101 F.3d at 852 (internal quotation marks and
citation omitted)); see Hulett v. City of Syracuse, 253 F. Supp. 3d 462, 494 (N.D.N.Y. 2017)
(Hurd, J.). "'Put another way, an arresting officer will find protection under the defense of
qualified immunity unless "no reasonably competent officer" could have concluded, based on
the facts known at the time of the arrest, that probable cause existed.'" Moore, 2021 U.S. Dist.
LEXIS 168700, *13-*14 (quoting Figueroa v. Mazza, 825 F.3d 89, 100 (2d Cir. 2016)).
Notably, whether the defendant had probable cause is "'viewed from the standpoint of an
objectively reasonable police officer.'" Benn v. Kissane, 510 F. App'x 34, 37 (2d Cir. 2013)
(summary order) (quoting Ornelas, 517 U.S. at 696) (other citation omitted).
Plaintiff claims that he was falsely arrested for violating the following four sections of
New York's Penal Law: disorderly conduct with respect to both obstructing traffic and refusing
to comply with a lawful order; harassment in the second degree; and resisting arrest. Under
New York law, "[a] person is guilty of disorderly conduct when, with intent to cause public
inconvenience, annoyance or alarm, or recklessly creating a risk thereof . . . [h]e obstructs
vehicular or pedestrian traffic; or . . . [h]e congregates with other persons in a public place and
refuses to comply with a lawful order of the police to disperse. . . ." N.Y. Penal L. § 240.20(5)-
(6). Furthermore, "[a] person is guilty of resisting arrest when he intentionally prevents or
attempts to prevent a police officer . . . from effecting an authorized arrest on himself or another
person." N.Y. Penal L. § 205.30. Finally, "[a] person is guilty of harassment in the second
degree when, with intent to harass, annoy or alarm another person . . . [h]e or she strikes,
shoves, kicks or otherwise subjects such other person to physical contact, or attempts or
threatens to do the same[.]" N.Y. Penal L. § 240.26(1).
With respect to Plaintiff's false arrest claim, the Court instructed the jury on these
sections of the Penal Law and charged the jury with the following: "If you find that the
Defendant you are considering had reasonable cause to arrest Plaintiff for Disorderly Conduct
or Harassment in the Second Degree, then you must find that the arrest was lawful, regardless
of whether Plaintiff was convicted of the crimes for which he was arrested." See Dkt. No. 168
at 13. Furthermore, with respect to resisting arrest, the Court instructed the jury as follows:
[I]t is not unlawful to resist an unauthorized arrest. Therefore, if
you find that the Defendant you are considering did not have
reasonable cause to arrest Plaintiff for Disorderly Conduct or
Harassment in the Second Degree, then you must also find that that
Defendant did not have reasonable cause to arrest Plaintiff for
Resisting Arrest.
Id.
The Court also explained to the jury that "[r]easonable cause means that Defendants had
information at the time they arrested Plaintiff that would cause a reasonable officer, under the
same facts and circumstances as Defendants, to believe that Plaintiff committed or was about to
commit a crime." Id. at 11. Thus, in finding Defendants liable for falsely arresting Plaintiff, the
jury must have concluded that Defendants did not have reasonable cause to arrest Plaintiff for
disorderly conduct or harassment in the second degree. See Dkt. No. 172 at 1-2. In requesting
JMOL, Defendants argue that the jury was unreasonable in coming to this conclusion.
Nonetheless, when looking at the evidence in the light most favorable to Plaintiff, the Court
finds that the jury reasonably came to this conclusion.
Plaintiff testified that he recalled that he arrived on Victoria Place and the party
appeared to be over, so he parked his car and walked down the street to meet with some friends.
See Dkt. No. 179, Pl's Trial Testimony, at 6-7. Plaintiff further testified that he was talking with
his friends, leaning inside of their car, which was parked legally, right up against the curb when
a police officer, later identified as Defendant Gunsalus, grabbed him from behind. See id. at 7-
9. Plaintiff stated that he did not hear anything that any police officers said when he was
speaking with his friends, and he had not interacted with the police until Defendant Gunsalus
grabbed him. See id. at 8-9. After being grabbed and "turned around," Plaintiff testified that
Defendant Gunsalus pushed him against the car and pressed an object against his neck to choke
him. See id. at 9. Plaintiff explained that, at no time had he been given any instructions from
the police, and the only thing Defendant Gunsalus said to him before grabbing him was, "are
you hard of hearing, mother f***er?" See id. At that point, Plaintiff described that Defendant
Gunsalus swung his left hand to punch him in the face, he went to the ground, and Defendant
Gunsalus continued to punch him while on the ground. See id. at 10. Plaintiff testified that he
felt multiple punches on his right side, and he was "probably jerking" as a "reaction" to being
punched, but he was not trying to run away, never tried to run away, and did not grab Defendant
Gunsalus. See id. at 12.
Elijah Johnson, one of Plaintiff's friends who testified at trial, explained that the police
had arrived and broken up the party; however, he did not personally hear the police say
anything or order people to disperse. See Dkt. No. 181, Elijah Johnson's Trial Testimony, at 4-
5, 15. Elijah Johnson also testified that, after Plaintiff approached his car, Defendant Gunsalus
came up to Plaintiff and asked him if he listened and "[g]rabbed him and punched him." See id.
at 7.
Rachel Cary (also known as Zeb Miles), who lived on Victoria Place, also testified that
she was sitting in front of her house and witnessed "a kid trying to get into the driver's seat and
at that time the cop stopped him and pulled him to behind the car, got him on the ground and
beat him up." See Dkt. No. 182, Cary's Trial Testimony, at 8. Cary could not recall the police
officers making "an announcement specifically" for individuals to disperse, but by the time the
police arrived there "were hardly any kids left, just a few stragglers." See id. at 6. Cary
testified that the police officers were "chasing the lingering kids that were around," and at least
one police officer was shouting "Who's next, who's next," as he chased and taunted the
individuals leaving Victoria Place. See id. at 6-7. The only other remark Cary recalled was
that, after witnessing Defendant Gunsalus "beat [Plaintiff] up," Defendant Gunsalus ran up to
Cary's porch and said, "You saw him resist, right? Right?" See id. at 9. Cary responded to
Defendant Gunsalus that she had seen Plaintiff resist, but that was a "kneejerk react[ion],"
because she "had not actually seen him resist." See id. at 10.
Erin Gustke, Ms. Cary's partner at the time, woke up to loud noises on the street from
the party, went out onto her porch, and saw Defendant Gunsalus walking down the street
repeatedly shouting, "Who's next?" in a loud and aggressive manner. See Dkt. No. 178,
Gustke's Trial Testimony, at 11-12. Gustke testified that she did not hear Defendant Gunsalus
identify himself as a police officer, and she did not hear him order people to disperse. See id. at
12. She then explained that she watched Defendant Gunsalus approach Plaintiff in the street,
and "the next thing [she] saw was that [Plaintiff] was on the ground," and Defendant Gunsalus
was hitting him. See id. at 12-13. Gustke testified that she saw Defendant Gunsalus's arm
swing back in the air multiple times and "come down with some force," and she saw it "more
than three times." See id. at 13. According to Gustke, Plaintiff "was laying on the ground," and
"[h]e wasn't resisting, he was just being hit." See id. Gustke also did not hear Plaintiff say
anything. See id. at 14.
Kenneth McFadden, a passenger in the Cadillac, testified that he and his friends were
parked legally, close to the curb, when Plaintiff came up to the vehicle. See Dkt. No. 180,
McFadden's Trial Testimony, at 6. According to McFadden, Plaintiff was standing by the car
for "[m]inutes" before "an officer walked up on [Plaintiff] and just immediately just [sic]
grabbed him." See id. at 7. McFadden stated that he did not hear any dialogue between
Plaintiff and Defendant Gunsalus. See id. All McFadden could see were both of Defendant
Gunsalus's hands on Plaintiff and his forcing Plaintiff to the ground. See id. at 8, 17-19.
Patrick Johnson, the driver of the Cadillac, testified that he heard the police officers
broadcast over the speaker on the police car for people to disperse. See Dkt. No. 183, Patrick
Johnson's Trial Testimony, at 8. However, he later equivocated that he "never heard exactly
what they said," and assumed that the police officers wanted partygoers to "get out of [t]here."
See id. at 9. Patrick Johnson further testified that Plaintiff did not arrive until after the police
officers announced that the people should disperse. See id. at 11. He then testified that, after
Plaintiff began talking to him and the passengers in the vehicle, Defendant Gunsalus
"simultaneously" "yelled and grabbed" Plaintiff and "swung him around." See id. at 13. Patrick
Johnson also clarified that, when he had been speaking with Plaintiff, Plaintiff's forearms were
on the rolled-down driver's window, and neither Plaintiff's person nor Johnson's car were
blocking the road. See id. at 14.
The jury was free to credit Plaintiff's and these witnesses' testimonies to conclude that
Defendants either did not order partygoers to disperse or that, for a variety of reasons, it was
unreasonable for Defendants to believe that Plaintiff heard the order. The jury also could have
concluded, from this evidence, that the Cadillac was legally parked along the curb and that
Plaintiff, who by all accounts was leaning into the vehicle, was not standing in the middle of the
road or otherwise obstructing traffic; and, therefore, it was unreasonable for the police officers
to conclude otherwise. Additionally, none of these witnesses testified that they saw Plaintiff
push, hit, or otherwise put his hands on Defendant Gunsalus; and, thus, a reasonable jury could
have concluded that it was not reasonable for Defendant Gunsalus to believe he had probable
cause to arrest Plaintiff for harassment in the second degree. Accordingly, based on the
foregoing evidence, it was reasonable for the jury to conclude that no reasonable officer would
have believed that he had probable cause to arrest Plaintiff for disorderly conduct or
harassment; and it was reasonable for the jury to find that Defendants falsely arrested Plaintiff
on those charges. Moreover, because a reasonable jury could conclude that Defendants did not
have probable cause to lawfully arrest Plaintiff for disorderly conduct or harassment, the jury
was required – as the Court instructed it – to find that Defendants did not have probable cause
to arrest Plaintiff for resisting arrest. For these reasons, the Court denies Defendants' motion for
JMOL with respect to Plaintiff's false arrest claim. For the same reasons, the Court finds that
Defendants are not entitled to qualified immunity on this claim.
2. Whether Defendant Gunsalus is entitled to JMOL or qualified immunity on
Plaintiff's excessive force claim
"[W]here a claim for excessive force 'arises in the context of an arrest or investigatory
stop of a free citizen, it is most properly characterized as one invoking the protections of the
Fourth Amendment." Cugini v. City of New York, 941 F.3d 604, 612 (2d Cir. 2019) (quoting
[Graham v. Connor, 490 U.S. 386,] 394 [1989]). "It is therefore analyzed under the Fourth
Amendment's 'reasonableness' standard, rather than under the subjective 'substantive due
process' approach[.]" Id. (quotation omitted). "Because 'the right to make an arrest or
investigatory stop necessarily carries with it the right to use some degree of physical coercion or
threat thereof to effect it,' determining whether the amount of force an officer used is reasonable
'requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth
Amendment interests against the countervailing governmental interests at stake.'" Id. (quoting
[Graham, 490 U.S.] at 396 (citations and internal quotation marks omitted)). "According to the
Supreme Court, that balancing test looks 'to the facts and circumstances of each particular case,'
especially (1) 'the severity of the crime at issue'; (2) whether the arrestee poses an immediate
threat to the officer or passersby; and (3) whether the arrestee is 'actively resisting arrest or
attempting to evade arrest by flight.'" Lee v. City of Troy, 520 F. Supp. 3d 191, 207 (N.D.N.Y.
2021) (Hurd, J.) (quoting Graham, 490 U.S. at 396).
With respect to Plaintiff's excessive force claim, the Court charged the jury, in relevant
part, as follows:
To determine if Defendant Gunsalus' conduct deprived Plaintiff of
his right to be free from excessive force, you must determine
whether the amount of force Defendant Gunsalus used when
arresting Plaintiff was that which a reasonable officer would have
used while making an arrest under similar circumstances.
You are to determine the answer to this question based upon the
totality of the circumstances surrounding the arrest at issue, in light
of all of the evidence you have received in this case. When making
this determination, you may consider various factors, including (1)
the severity of the crime for which plaintiff was arrested; (2) the
danger or threat, if any, that Plaintiff posed to Defendant Gunsalus'
or others' safety; (3) whether Plaintiff actively resisted arrest or
attempted to evade arrest by flight; (4) whether Plaintiff complied
with any direct orders from police officers; and (5) the extent and
nature of Plaintiff's injuries …
…
If you find that Plaintiff has established, by a preponderance of the
evidence, that the amount of force Defendant Gunsalus employed
was greater than a reasonable officer would have employed under
all of the circumstances, then Plaintiff has established that
Defendant Gunsalus deprived him of his federal right to be free
from excessive force.
See Dkt. No. 168 at 14-15.
Plaintiff was arrested for disorderly conduct, harassment in the second degree, and
resisting arrest. The parties appear to agree that, before Defendant Gunsalus attempted to
physically restrain Plaintiff, he only would have been arresting Plaintiff for disorderly conduct,
which is merely a violation under New York's Penal Law. See N.Y. Penal L. § 240.20. As
discussed above, at trial, various witnesses testified that Plaintiff was on the side of the road,
leaning into his friend's vehicle, when Defendant Gunsalus came up from behind him and began
punching Plaintiff and dragging him to the ground. In these versions of the events, Plaintiff did
not pose any immediate threat to Defendants or to passersby. As examples, there was no
evidence that Plaintiff had a weapon, that he verbally threatened the officers, or that he was
confronting others on the street.
The parties dispute whether Plaintiff actively resisted arrest. During cross-examination
at trial, Plaintiff was adamant that he did not push Defendant Gunsalus or "put hands on him,
[he] just stepped back." See Dkt. No. 179 at 67. He further stated that he "didn't really push off
[Defendant Gunsalus], [he] was trying to move [Defendant Gunsalus] off [his] shirt." See id.
Plaintiff explained to the jury that he pulled away from Defendant Gunsalus, who was holding
onto his shirt. See id. at 68. Ms. Cary testified, as previously described, that she also did not
see Plaintiff resisting arrest. See Dkt. No. 182 at 9-10.
In response to Special Interrogatory #5, the jury concluded that Defendants did not
prove, by a preponderance of the evidence, that Plaintiff exerted some pressure on Defendant
Gunsalus – either pushing or pulling – by placing his hands on Defendant Gunsalus's uniform
sleeves or upper arms. See Dkt. No. 173 at ¶ 5. The jury was free to credit Plaintiff's and Ms.
Cary's testimony; and, apparently having credited such testimony, it concluded that Plaintiff
was not actively resisting his arrest in this way. The Court finds that it was reasonable for the
jury to come to that conclusion based on the evidence and testimony presented during trial.
Furthermore, the Court concludes that the jury was reasonable in balancing all of the factors
described in the jury instructions and finding that a reasonable officer would not have used the
amount of force Defendant Gunsalus used when arresting Plaintiff for a violation. Accordingly,
the Court denies Defendants' motion for JMOL or qualified immunity on Plaintiff's excessive
force claim.
3. Whether Defendant Gunsalus is entitled to JMOL or qualified immunity on
Plaintiff's malicious prosecution claim
"To prevail on a malicious prosecution claim under New York law and federal law, a
plaintiff must show: '(1) the commencement or continuation of a criminal proceeding by the
defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3)
the absence of probable cause for the criminal proceeding and (4) actual malice.'" Kee v. City of
New York, 12 F.4th 150, 161-62 (2d Cir. 2021) (quoting Smith-Hunter v. Harvey, 95 N.Y.2d
191, 734 N.E.2d 750, 752, 712 N.Y.S.2d 438 (N.Y. 2000) (internal quotation marks omitted))
(other citation omitted). "For a malicious prosecution claim under Section 1983, a plaintiff also
must demonstrate a 'sufficient post-arraignment liberty restraint.'" Id. at 162 (quoting Rohman
v. N.Y.C. Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000)).
"To satisfy the first element, 'a defendant must do more than report a crime or give
testimony.'" Bornschein v. Herman, 304 F. Supp. 3d 296, 302 (N.D.N.Y. 2018) (Kahn, J.)
(quoting Manganiello v. City of New York, 612 F.3d 149, 163 (2d Cir. 2010)). "[M]alicious
prosecution claims are generally brought against arresting or prosecuting officials[.]" Id. With
respect to the second element, "[a] proceeding need not result in an acquittal at trial in order to
be favorably terminated, although acquittal is certainly sufficient." Daniels v. Gladstone, No.
16-CV-190 (PKC) (JO), 2019 U.S. Dist. LEXIS 128167, *32 (E.D.N.Y. July 31, 2019) (citation
omitted).1 "With regard to the third element of a malicious prosecution claim, 'probable cause
to prosecute consists of "facts and circumstances [that] would lead a reasonably prudent person
to believe the plaintiff guilty."'" Thomas v. City of Troy, 293 F. Supp. 3d 282, 302 (N.D.N.Y.
2018) (Suddaby, C.J.) (quoting Ying Li, 246 F. Supp. 3d at 611 (quoting Boyd v. City of New
York, 336 F.3d 72, 76 [2d Cir. 2003])). Actual malice "does not have to be actual spite or
hatred, but requires only 'that the defendant must have commenced the criminal proceeding due
to a wrong or improper motive, something other than a desire to see the ends of justice served.'"
Dufort v. City of New York, 874 F.3d 338, 353 (2d Cir. 2017) (quoting Nardelli v. Stamberg, 44
N.Y.2d 500, 502-03. 377 N.E.2d 975, 406 N.Y.S.2d 443 (1978)). "Malice may be inferred,
however, from the absence of probable cause." Id. (citing Lowth v. Town of Cheektowaga, 82
F.3d 563, 573 (2d Cir. 1996) (citation omitted)). Finally, as the Court held in its March 2019
order denying Defendants' motion for summary judgment with respect to this claim, "[a]
1 The parties stipulated before trial that the criminal charges initiated against Plaintiff were
terminated in Plaintiff's favor. See Dkt. No. 131 at 2; Dkt. No. 168 at 18.
defendant released pretrial has still suffered a post-arraignment deprivation of liberty" because
the defendant "'is scarcely at liberty; he remains apprehended, arrested in his movements,
indeed "seized" for trial, so long as he is bound to appear in court and answer the state's
charges.'" See Dkt. No. 87 at 14 (quoting Murphy v. Lynn, 118 F.3d 938, 946 (2d Cir. 1997)
(quotation omitted)).
The Court instructed the jury on each of these elements, noting specifically that if the
jury found that there was probable cause for any one of the charges against Plaintiff then it must
find in favor of Defendant on Plaintiff's malicious prosecution claim. See Dkt. No. 168 at 16-
19. The Court further charged as follows:
Generally, if you find that the Defendant you are considering
lacked probable cause to initiate the criminal proceeding, you may,
but are not required to, infer that that Defendant acted with malice.
However, the ultimate question is whether the pursuit of the
criminal charges against Plaintiff was undertaken in bad faith by
the Defendant you are considering.
See id. at 19.
Additionally, the Court explained that "[a]n unconstitutional seizure occurs when there
is an undue restraint placed on an individual's post-arraignment personal liberty." See id.
The jury was thus left to consider the evidence presented at trial, including Brian
Novitsky's testimony. Novitsky, a sergeant in the City of Syracuse Police Department and
Defendants' supervisor, indicated that he reviewed Defendant Gunsalus's arrest report and case
work to check for "completeness and thoroughness and to make sure that the investigation
supported the charges that were lodged against [Plaintiff]." See Dkt. No. 201, Novitsky Trial
Testimony, at 13-14. Novitsky explained that police officers are allowed to make individual
determinations on whom to arrest, and they also make the determination as to whether those
charges go to the District Attorney's office. See id. at 14. Novitsky testified that he signed off
on the charges but that Defendant Gunsalus was the arresting officer. See id. Defendant
Gunsalus was also listed as the complainant on each of the criminal informations, which were
admitted into evidence for the jury to view. See Pl's Exs. 7-9. Based on this testimony, the jury
could reasonably have found that Defendant Gunsalus, as the arresting officer, completed and
filed the arrest report with the District Attorney's Office to satisfy the first element of Plaintiff's
malicious prosecution claim.
Regarding the third element, as discussed above, the jury heard testimony that could
have led to the reasonable conclusion that Defendants did not have probable cause to arrest
Plaintiff for disorderly conduct or harassment. Since the jury reasonably could have found that
Defendants did not have probable cause to arrest Plaintiff, then it follows that a reasonable jury
may have inferred malice from Defendants' lack of probable cause. The jury also could have
reasonably credited testimony from Ms. Cary, Ms. Gustke, Plaintiff, and Plaintiff's friends that
Defendant Gunsalus appeared to be looking for a fight when calling out "Who's next? who's
next?," swearing at Plaintiff, and seemingly attacking Plaintiff out of nowhere.
Finally, with respect to post-arraignment deprivation, Plaintiff testified that he was taken
to the Justice Center following his arrest, but he was not incarcerated, never spent time in jail,
and was not convicted of a felony. See Dkt. No. 179 at 22. Plaintiff only spent the night in the
Justice Center and was released on his own recognizance in the morning without bail. See id. at
24. However, Plaintiff explained that he continually returned to court on a monthly basis before
the case was over, and he "felt scared" that he was "facing up to a year in jail" when "none of
that [criminal conduct] happened." See id. Defendants contend that Plaintiff did not suffer a
post-arraignment deprivation of his personal liberty because he would have had to go to court
on his disorderly conduct charges. The Court finds this argument meritless, however, because
the jury reasonably could have concluded that Defendants did not have probable cause to arrest
Plaintiff on any charges. The Court further concludes that the jury reasonably could have
credited Plaintiff's testimony and found that he suffered such a deprivation in that he had to
appear in court monthly up until and through his criminal trial and was fearful about facing up
to a year in jail for crimes he believed he did not commit.
In sum, based on all of the above-described testimony and evidence presented at trial,
which the jury was free to credit or discredit as it wished, the Court finds that a reasonable jury
could have concluded that Plaintiff established, by a preponderance of the evidence, each
element to prove his claim for malicious prosecution against Defendant Gunsalus. Accordingly,
the Court denies Defendants' motion for JMOL and for qualified immunity on this claim.
B. Defendants' alternate motion for a new trial pursuant to Rule 59
A party may be entitled to a new trial if "the trial judge gave improper instructions to the
jury" and that error is not harmless. Sanders v. New York City Human Resources Admin., 361
F.3d 749, 758 (2d Cir. 2004) (citing Gordon v. New York City Bd. of Educ., 232 F.3d 111, 115-
16 (2d Cir. 2000)). "A jury instruction is erroneous, and a new trial warranted, only if it
misleads a jury as to the correct legal standard or does not adequately inform the jury on the
law." Robinson v. Ballard, No. 9:13-CV-01213 (TWD), 2019 U.S. Dist. LEXIS 165185, *16
(N.D.N.Y. Sept. 26, 2019) (Dancks, M.J.) (citing Anderson v. Branen, 17 F.3d 552, 556 (2d Cir.
1994)). "As to supplemental instructions given by the district court, '[i]f a supplemental charge
is legally correct, the district court enjoys broad discretion in determining how, and under what
circumstances, that charge will be given.'" Uzoukwu v. City of New York, 805 F.3d 409, 414 (2d
Cir. 2015) (quoting United States v. Civelli, 883 F.2d 191, 195 (2d Cir. 1989) (parenthetical
omitted)).
Defendants speculate that the jury did not understand the instructions with respect to intent
based on a question that a juror asked the Court in the midst of the jury charge about the
meaning of intent in New York's Penal Law. See Dkt. No. 192-1 at ¶¶ 24-28. 2 The Court's
instruction with respect to "intent" arose under Plaintiff's false arrest claim, when the Court
charged the following:
As it pertains to this case, under New York Penal Law Section
240.20, a person is guilty of disorderly conduct when, with intent
to cause public inconvenience, annoyance or alarm, or recklessly
creating a risk thereof, (1) he obstructs vehicular or pedestrian
traffic; or (2) he congregates with other persons in a public place
and refuses to comply with a lawful order of the police to disperse.
As it pertains to this case, under New York Penal Law Section
240.26(1), a person is guilty of harassment in the second degree
when, with intent to harass, annoy, or alarm another person, he or
she strikes, shoves, kicks or otherwise subjects such other person
to physical contact, or attempts or threatens to do the same.
See Dkt. No. 168 at 12-13.
The Court provided the following supplemental instruction after the juror's question to more
specifically define "intent," as it is used in New York's Penal Law:
Intent ordinarily may not be proved directly because there is no
way of understanding or scrutinizing the operations of the human
mind. But you may infer a person's intent from surrounding
circumstances. You may consider any statement made or act done
or omitted by a party whose intent is in issue, and all other facts
and circumstances indicating the party's state or mind.
2 Defendants additionally rely on the fact that, in a post-verdict conversation between counsel
and the jury, the jurors allegedly said that they were "hung up" on the issue of Plaintiff's intent.
Not only do Defendants improperly rely upon post-trial, off-the-record discussions, but
Defendants do not provide any specifics as to which juror made this statement, if all jurors
agreed, if it was a misstatement, or if it warrants any sort of post-trial inquiry. In addition,
although Defendants contend that the juror's statements show that the jury improperly
considered Plaintiff's intent, the statements could also be interpreted as indicating that the jurors
were truly "hung up" on the issue of whether Defendants had probable cause to believe that
Plaintiff had the intent to violate New York's Penal Law, which is what the jury was required to
consider. The Court therefore rejects Defendants' reliance on these alleged statements.
You may consider it reasonable to draw the inference and find a
person intends the natural and probable consequences of acts
knowingly done or knowingly omitted. It is for you to decide what
facts have been established by the evidence.
See Dkt. No. 169.
Defendants do not point to any admissible evidence that the jurors completely disregarded
the Court's instructions that "reasonable cause," with respect to Plaintiff's false arrest claim,
"means that Defendants had information at the time they arrested Plaintiff that would cause a
reasonable officer, under the same facts and circumstances as Defendants, to believe that
Plaintiff committed or was about to commit a crime." See Dkt. No. 168 at 11. A reasonable
officer, to determine if Plaintiff was about to commit or had committed a crime that requires
intent, would need to know if Plaintiff had that intent. The jury reasonably could have parsed
this information to conclude that Defendants did not have probable cause to arrest Plaintiff
because there was no evidence that Plaintiff intended to violate the Penal Law through his
alleged disorderly conduct or harassment. Defendants have "not shown the jury instructions
were legally incorrect, led to any jury confusion, or caused any prejudice." Robinson, 2019
U.S. Dist. LEXIS 165185, at *16 (citing Nimely v. City of New York, 414 F.3d 381, 392 (2d Cir.
2005) (citations omitted)). Therefore, because Defendants have "failed to show the instructions
resulted in a seriously erroneous result or a miscarriage of justice," id., the Court denies their
alternate motion.
C. Plaintiff's motion for a new trial on punitive damages
Plaintiff contends that the Court erred in the following two ways: (1) in rejecting his
request to give a jury instruction as to punitive damages; and (2) by precluding evidence that
Defendant Gunsalus placed a hard object against Plaintiff's throat. See Dkt. No. 187-1, Pl's
Memorandum in Support of Motion for New Trial, at 1. Plaintiff argues that a punitive
damages instruction would have been appropriate on both his excessive force and malicious
prosecution claims. See id. at 1-3. According to Plaintiff, the testimony at trial revealed that
Defendant Gunsalus punched Plaintiff "for no reason, and then the 250 pound man sat on the
much smaller [Plaintiff]'s back as he punched him multiple times[.]" See id. at 3. Plaintiff
contends that this evidence is "more than enough" to find the requisite evil motive or intent or
the degree of reckless or callous indifference to his rights such that the Court was required to
instruct the jury on punitive damages. See id. (citing DiSorbo [v. Hoy, 343 F.3d 172], 175 [2d
Cir. 2003]). Plaintiff argues that, as evidenced by its second note, "the jury was clearly looking
to find a way to award greater damages[.]" See id. (citing Dkt. No. 171). Plaintiff asserts that
his physical injuries – including his ripped earlobe and swollen face – "were real but not
overwhelming," and "[a] punitive damage instruction would have allowed for a proper verdict
commensurate with the nature of Defendant Gunsalus' behavior and the evil intent it
represented." See id. at 3-4. Furthermore, Plaintiff argues that, if the Court grants a new trial
on the issue of punitive damages, then the Court should permit Plaintiff to admit evidence that
Defendant Gunsalus pressed a hard object against his throat. See id. at 4-5.
"A party is not entitled to have the court give the jury an instruction for which there is
no factual predicate in the trial record." McCardle v. Haddad, 131 F.3d 43, 52 (2d Cir. 1997)
(citations omitted). "A punitive damages instruction is appropriate when the plaintiffs have
produced evidence that 'the defendant's conduct is . . . motivated by evil motive or intent, or
when it involves reckless or callous indifference to the federally protected rights of others'; or,
in other words, when the plaintiffs have produced evidence of 'a positive element of conscious
wrongdoing' or 'malice.'" Cameron v. City of New York, 598 F.3d 50, 69 (2d Cir. 2010)
(quoting New Windsor Volunteer Ambulance Corps., Inc. v. Meyers, 442 F.3d 101, 121-122 (2d
Cir. 2006) (internal quotation marks omitted)). "Consequently, a plaintiff is not entitled to an
instruction allowing the jury to award punitive damages unless there is evidence that the
defendant's conduct could be so characterized." McCardle, 131 F.3d at 53.
Plaintiff does not appear to argue that he was entitled to a punitive damages instruction
on his false arrest claim but contends that a punitive damages instruction was appropriate for his
excessive force and malicious prosecution claims. As the jury only found Defendant Gunsalus
liable with respect to those claims, Plaintiff apparently seeks a new trial before a new jury panel
to determine whether Defendant Gunsalus must pay Plaintiff punitive damages. Notably, this is
a unique procedural request, and the Court has not found any other cases in which a court held a
separate trial on punitive damages after excusing the original jury and in which the plaintiff was
permitted to reintroduce the original evidence. Nonetheless, even if the Court could order that
particular relief, the Court declines to do so. Although the jury was entitled to conclude that
Defendant Gunsalus's conduct violated Plaintiff's constitutional rights, Plaintiff did not present
sufficient evidence to show that Defendant Gunsalus acted with an "evil motive or intent." As
the Court concluded in denying Plaintiff's request for a punitive damages instruction at the
charge conference, "given the facts and circumstances of the case," it was not "an appropriate
charge and if the jury somehow found it to be necessary, [the Court would] have to set it aside
as against the weight of the evidence[.]" See Dkt. No. 205, Charge Conference Transcript, at 4.
Accordingly, the Court denies Plaintiff's motion for a new trial on punitive damages.
Ill. CONCLUSION
After carefully considering the entire file in this matter, the parties’ submissions, and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Defendants’ motion for judgment as a matter of law, qualified immunity,
or a new trial, see Dkt. No. 192, is DENIED; and the Court further
ORDERS that Plaintiff's motion for a new trial on punitive damages, see Dkt. No. 187,
is DENIED.
IT IS SO ORDERED.
Dated: January 10, 2022 Freder& J Beultn, Jr.
Syracuse, New York Senior United States District Judge
-22-