Petition for Writ of Certiorari — Haddad v. Lieberman

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No, . BILATIMARG 2000

: ; OFFICE OF THE CLERK

Supreme Court of the United States

ee

JONATHAN HADDAD,

Petitioner,

—_VvV.—

ISAAC LIEBERMAN,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

_-

MARTIN S. ECHTER, ESQ.*

c/o Office of Corporation Counsel

City of New Haven

165 Church Street

New Haven, Connecticut 06510

(203) 946-7958

Attorney for Petitioner

* Counsel of Record

_ em

QUESTIONS PRESENTED FOR REVIEW

Is a Police Officer constitutionally required to

evaluate the possible alternative _ collateral legal

consequences of the particular crime charged when there

exists Objective factual probable cause for the arrest?

PARTIES TO PROCEEDINGS BELOW

Plaintiff-Respondent Isaac Lieberman.

Defendant-Petitioner New Haven Police Officer

Jonathan Haddad

Also, defendants New Haven Police Officers Robert

Dudley, J. Savinelli, and David Coppola.

COM TROT re TE PT aE LIE MM NRL BT PUR, SN Pf EN RENE IIE A a HSN. mt

ill

TABLE OF CONTENTS

Questions Presented for Review.......................... il

Parties to Proceedings Below............ ep eiabiceesuckee il

SER ill

ee 1\

Petition for Writ of Certiorari

TI ooo os de sas scucseeed civic secenks |

a een eae eee

Constitutional and Statutory Provisions

oc SETS ESE eA a 2

Statement of the SRNR te Sea ER RE

Reasons for Granting the Writ............................ 8

Appendix

IV

:

TABLE OF AUTHORITIES )

CASES ?

Biddle vs. Martin, 992 F.2d 673 |

eee ee 13

Craig vs. Krzeminski, 764 F.Supp. 248

iia NN cs ee es 14 |

Florida v. Royer, 460 U.S. 491, 103 S.Ct. |

1319, 75 L.Ed.2d 229 (1983) ...ccccccceceececseseseen 15 ;

Foster v. Metropolitan Airports Comm'n,

914 F.2d 1076, 1080 (th Cir. 1990).............0.0... 13

Gasho v. United States, 39 F.3d 1420 |

(9" Cir. 1994), cert. denied, 515 U.S. 1144, |

115 S.Ct. 2582, 132 L.Ed.2d 831 (1995) ..ccccceee.20-.13 |

Harlow v. F itzgerald, 457 U.S. 800, 102 S.Ct. |

2727, 73 L.Ed2d 396 (1982)...cccccccscscseescseeeee 15 )

Hunter v. Bryant, 502 U.S. 224, 112 S.Ct. 534, |

116 L.Ed $89 (9991)....0cocc0-cusucecscsccecasses ses 16

Klinger vs. United States, 409 F.2d 299 )

a SR 14 |

Peters v. New York, 392 U.S. 40, 88 ,

S.Ct. 1889, 20 L.Ed2d 917 (1968).........c.cecseeeeee 15

Pfannstiel v. City of Marion, 918 F.2d 1178

PE ide eccecateaiana 13

Posr v. Doherty, 944 F.2d 91

COR GM. FE iiss cca tiersc tenet 8,9

Richardson v. Bonds, 860 F.2d 1427 _

ie 1 a ee ee 13,14,15

Saffron vs. Wilson, et al., 481 F.Supp. 228

(I ERR .. P POR iisinki eure eee 14

Santiago v. Fenton, 891 F.2dd 373

(PC Wicca ei ee ee 14

Sibron v. New York, 392 U.S. 40, 88

S.Ct. 1889, 20 L.Ed2d 917 (1968)............... ee 15,16

State v.Beckenbach, | Conn. App. 669,

SPs Pl FO ii cckdicatcdrcidnaeenticcausue 11,12,17

State v. Privitera, 1 Conn. App. 709,

SFO Fe Gar i xantieeesdiniasinweseata 12,17

State v. Weber, 6 Conn. App. 407,

DOD Pits UAE CEDIIY ga scdinsicsccsscadcacaeersacctel 11,12,16

Trejo v. Perez, 693 F.2d 482

Oh. FR i a ee 13,15

a

United States vs. Carr, 445 F.Supp.

53502 CEPCOUM, BDTB Ai avivicdsccdensssccsxasnsseaee 14

United States vs. Day, 455 F.2d 454 i

(36 CO, POTD) ios va cssiuiseseusasssnisaaeaee

United States, ex rel. Senk vs. Brierley. 2

381 F. Supp. 447 (M.D. Pa. 1974),

aff'd, 511 F.2d 1396 (3d Cir.), cert denied,

423 U.S. 843, 96 S.Ct. 77,

46 L.Ed, 2G PR. iis cc 16 |

United States ex rel. LaBelle vs. :

LaVallee, 517 F.2d 750 (2d Cir. 1975).......ceccceceseeee. 14

United States v. Rambo, 789 F.2d 1289

(8" Cle, 19GB)... :.i.cvicies cee 13

United States vs. Salinas-Calderon,

728 F.2d 1298 (10th Cir. 1984)......cccccccseeeseseseseeee 16

Vance v. Nunnery, 137 F.3d 270 ;

Ce WER ae snaihanieiatasisiedanaa ee 14 |

Warren v. City of Lincoln, Nebraska, et al.,

864 F.2d 1436 (Gtk Cir. 1909)... .nssenssscesaseusssensans 16

Washington Mobilization Committee

v. Cullinane, 566 F.2d 107,

:

Vii

rehearing en banc denied (D.C. Cir. 1977).......... 13,14

Whren, et al. v. United States.

517 U.S. 806, 116 S.Ct. 1769,

ESD Ms ROME OM, TP CRI a vekiscsnavecnedodcsoadeceocescc: 17

CONSTITUTIONAL PROVISIONS

Fourth Amendment to the Constitution

nee A.

Fourteenth Amendment to the Constitution

OE ED SNe Ns ie isicendicsncksd ochkessdenedn coke. 3

STATUTORY PROVISIONS

Connecticut General Statutes.

CE PE atc a ...3,4,12

Connecticut General Statutes.

ee i cg, TROON Re!

Connecticut General Statutes.

NI PRP iccihinciciinscnedenneakocseGaucin 4.5.6.11

Connecticut General Statutes,

| a en. Sf

No. -

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1999

JONATHAN HADDAD

‘ Petitioner

7;

ISAAC LIEBERMAN,

Respondent

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

PETITION FOR A WRIT OF CERTIORARI

ORDERS BELOW

A verdict after trial was delivered January 9, 1998.

Judgment entered February 13, 1998. [Appendix 1A.] Timely

motions for Posttrial relief and for attorney fees were filed

and decided in a Ruling on Pending Motions filed July 27,

1998. [Appendix 3A.] A Supplemental Judgment was filed

August 7, 1998. [Appendix 24A.] A timely Notice of

Appeal was filed August 26, 1998. [Appendix 26A.] The

Court of Appeals ruled October 7, 1999. [Appendix 28A.] A

timely Petition for Rehearing and Suggestion of En Banc

Hearing was filed and denied by Order dated December 7,

1999. [Appendix 35A.] A timely Motion to Stay the

Mandate was denied [Appendix 39A], and the Mandate

issued [Appendix 37A], both on January 21, 2000. We will

seek a partial stay from this Court.

JURISDICTION

The jurisdiction of this Court is invoked pursuant to

28 U.S.C. Section 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Petitioner relies on the following constitutional

provisions:

Fourth Amendment to the Constitution of the United

States.

ee a ee ee ee

Searches and seizures. The right of the peopleto be

secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated, and

no Warrants shall issue, but upon probable cause, supported

by Oath or affirmation, and particularly describing the place

to be searched, and the person or things to be seized.

Fourteenth Amendment to the Constitution of the

United States.

Citizens rights not to be abridged by states.

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof. are

citizens of the United States and of the State wherein they

reside. No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life, liberty,

or property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the laws.

The Petitioner relies on the following statutory

provisions:

Use of physical force to resist arrest not justified.

Connecticut General Statutes. Section 53a-23. In

Connecticut A person is not justified in using physical force

to resist an arrest by a reasonably identifiable peace officer,

whether such arrest is legal or illegal.

Imprisonment for misdemeanor: Maximum and minimum

sentences. Connecticut General Statutes. Section 53a-36.

A sentence of imprisonment for a misdemeanor shall

be a definite sentence and the term shall be fixed by the court

as follows: (1) For a class A misdemeanor, a term not to

exceed one year except that when a person is found guilty

under section 53a-61(a)(3) or 53a-61a, the term shall be one

year and such sentence shall not be suspended or reduced; (2)

for a class B misdemeanor, a term not to exceed six months;

(3) for a class C misdemeanor, a term not to exceed three

months; (4) for an unclassified misdemeanor, a term in

accordance with the sentence specified in the section of the

general statutes that defines the crime.

Interfering with An Officer, C.G.S. 53a-167a.

In Connecticut

(a) A person is guilty of interfering with an officer when,

with the intent to do so, he or she obstructs, resists, hinders or

endangers any peace officer or fireman in the performance of

his duties.

(b) Interfering with an officer is a class A misdemeanor.

Disorderly Conduct, C.G.S. 53a-182. In Connecticut, (a) A

person is guilty of Disorderly Conduct when, with intent to

cause inconvenience annoyance ‘or alarm, or recklessly

creating a risk thereof, he or she (1) engages in fighting or in

violent, tumultuous or threatening behavior; or (2) by

offensive or disorderly conduct, annoys or interferes with

another person; or ... (6) congregates with other persons in a -

public place and refuses to comply with a reasonable official

request or order to disperse.

(b) Disorderly conduct is a class C misdemeanor.

STATEMENT OF THE CASE

By Respondent Isaac Lieberman's own account he

observed Officers Dudley and Savinelli taking Juan Abreu

into custody inside and thereafter outside, he observed them

struggling on the ground outside, and he thought Mr. Abreu

was in distress. [TTA, pp. 102-105, 121, 124, 442, 457, 512-

517, 535-36, Def. Exh. I; TTA, pp. 335-338M 512-517,

537A-537B.] [TTA refers to Trial Transcript Appendix. ]

But, Mr. Lieberman also agreed that the police could

not see that Mr. Abreu was in distress because of the

direction in which Mr. Abreu was facing. [TTA, pp. 335-338,

512-517, 537A-537B.]

Again, by Mr. Lieberman's own account and that of

other of plaintiff's witnesses and the defendant police

officers, there was a crowd hostile to the police and Mr.

Lieberman yelled "you're killing him," the officers told Mr.

Lieberman to get back but he ignored their directive, and

when the officers attempted to take him into custody and

handcuff him he moved his arms and body to resist the

handcuffing and he and Officers Haddad and Coppola fell to

the ground. [TTA, pp. 174-179, 206-207, 330, 340, 355, 383-

392 .451-453, 538-539.] Mr. Abreu was arrested for

numerous charges, later pleading guilty. [JA, 59.]

Mr. Lieberman had been specifically charged with

Interfering with a Police Officer. Connecticut General

Statutes, 53a-167a(a).

The Court, at Defendant-Petitioner’s request,

correctly instructed the jury that it could find “probable

cause” if there was probable cause for either Interfering with

an Officer or for the crime of Disorderly Conduct.

Connecticut General Statutes, Section 53a-182(a)(1),(2) and

(6). Also properly, in giving this instruction the Trial Court

did not distinguish between the probable cause relevant to the

claim of false arrest and the probable cause relevant to the

claim of malicious prosecution. [TTA, 635-640. ]

The civil jury found probable cause for the arrest of the

plaintiff by Defendants Haddad and Coppola, the only

officers alleged to have made a false arrest.

Nevertheless. the jury found a malicious prosecution

by the defendant Haddad who had prepared the routine Case

Incident Report shortly after the incident. [PI’s Trial Exhibit

2.]

In his posttrial Ruling the Trial Judge speculated that

. .. It 1s quite possible, and indeed probable, that

the jury concluded that the defendants had

probable cause to arrest the plaintiff on the

lesser offense of disorderly conduct, but

concluded that they did not have probable cause

to charge him with interference with a police

officer. See Posr v. Doherty, 944 F.2d 91, 100

(2d Cir. 1991)...

[Ruling on Pending Motions, pp. 4-5, Appendix 7A-8A.]

The appellate panel, also following Posr, similarly

concluded that

. A finding of probable cause to arrest does

not, however, foreclose a cause of action for

malicious prosecution if the plaintiff was

prosecuted on a more serious charge for which

there was no probable cause. ... If the mule

were otherwise, plaintiffs would have no

remedy if they were arrested on a minor charge

and maliciously prosecuted on a more serious

one....

[Appellate Panel ruling, page 3 (citation omitted), Appendix

32A.]

REASONS FOR GRANTING THE WRIT

The panel’s decision, and Posr v. Doherty, 944 F.2d

91 (2d Cir. 1991), upon which the panel relied, is inconsistent

with decisions of this Court and of all other federal circuit

courts and district courts we have found that have ruled on

the issue, although even the federal courts vary as to the

precise standards.

Only Posr and now the instant case permit a Court to

consider the officer’s possible subjective thoughts about the

legal consequences of the respective crimes charged, rather

than merely the objective factual basis for the arrest, in

determining whether an arrest and prosecution was legally

valid where several crimes charged all arise from the same

facts, the crimes charged are similar or related, and the jury

finds probable cause for one crime charged but not the other.

The result is that for the hundreds of thousands of

arrests annually within the Second Circuit police are exposed

to liability for malicious prosecution or false arrest even

where the arrestees” liberty was properly seized, solely

because of speculation about the officers’ subjective reasons

for charging more than one crime based on the same set of

facts.

|

10

Discussion.

Mr. Lieberman had been charged with both

Interfering with an Officer and with Disorderly Conduct.

As the Trial Court recognized and the jury found,

there is manifestly probable cause to arrest and charge Mr.

Lieberman for Disorderly Conduct.

Disorderly Conduct, C.G.S. 53a-182. In Connecticut,

(a) A person is guilty of Disorderly Conduct

when, with intent to cause inconvenience annoyance or

alarm, or recklessly creating a risk thereof, he or she (1)

engages in fighting or in violent, tumultuous or threatening

behavior; or (2) by offensive or disorderly conduct, annoys or

interferes with another person; or ...(6) congregates with

other persons in a public place and refuses to comply with a

reasonable official request or order to disperse.

(b) Disorderly conduct is a class C misdemeanor.

As indicated above, the Trial Judge speculated that

the jury found an absence of probable cause for the crime of |

Interfering with an Officer and that that was the basis for the

finding of a malicious prosecution.

11

Interfering with An Officer, C.G.S. 53a-167a.

In Connecticut “

(a) A person is guilty of interfering with an

officer when, with the intent to do so, he or she obstructs,

resists, hinders or endangers any peace officer or fireman in

the performance of his duties. '

(b) Interfering with an officer is a class A

misdemeanor.

Also, in Connecticut a person cannot interfere with an

arrest by a reasonably identifiable officer, whether such arrest

' ..."Those words, particularly ‘interfere’, have a broad scope.

By using those words it is ... intended to prohibit any act

which would amount to meddling in or hampering the

activities of the police in the performance of their duties....

The [defendant's] act, however, does not have to 'be wholly

or partially successful ... [nor ...] such as to defeat or delay

the performance of a duty in which the officer is then

engaged. The purpose of the statute, ..., origin in the

common law, is to enforce orderly behavior in the important

mission of preserving the peace; and any act that is intended

to thwart that purpose is violative of the statute.'".... Quoted

in State v. Beckenbach, 1 Conn. App. 669, 679, 476 A.2d 591

(1984); also State v. Weber, 6 Conn. App. 407, 505 A.2d

12

is legal or not and it is not a defense to the crime of

Interfering with an Officer.’

Whatever Mr. Lieberman's suvjective motives for

refusing the directive to move back and for resisting the

handcuffing, from the reasonable perspective of Officer

Haddad, the only officer found liable for malicious

prosecution, there was manifestly probable cause to arrest

and charge Mr. Lieberman with the crime of Interfering with

a Police Officer as well as the crime of Disorderly Conduct,

Connecticut General Statutes, Section 53(a)(1),(2) and (6).

However, most important for purposes of this

Petition, in every jurisdiction except the Second Circuit the

arrest and the prosecution were legal and valid even if there

was, hypothetically insufficient probable cause to support the

crime of Interfering with an Officer.

1266 (1986); State v. Privitera, 1 Conn. App. 709, 719, 476

A.2d 605 (1984).

2 Connecticut General Statutes, Section 53a-23; State v.

Weber, 6 Conn. App. 407, 505 A.2d 1266 (1986); State v.

Beckenbach, 1 Conn. App. 669, 679, 476 A.2d 591 (1984);

State v. Privitera, 1 Conn. App. 709, 719, 476 A.2d 605

(1984).

13

Interfering with an Officer and Disorderly Conduct

are surely similar in nature and severity, and indeed, both are

misdemeanors. Connecticut General Statutes Section 53a-36

indicates only a difference of nine months in the potential

sentences for the respective crimes. (In fact, the Respondent

offered no evidence as to the relative consequences of arrest

for the two crimes.) Other federal courts that we found to

have addressed the issue have unanimously rejected the

principle of Posr in similar circumstances and concluded that

it is irrelevant if the officer mislabels the crime charged or

did not select the correct crime to charge, provided there is

objective probable cause for a similar or related crime.

Gasho v. United States, 39 F.3d 1420, 1428 n. 6 (9" Cir.

1994), cert. denied, 515 U.S. 1144, 115.S.Ct. 2582, 132

L.Ed.2d 831 (1995); Biddle v. Martin, 992 F.2d 673, 676 (7th

Cir. 1993); Pfannstiel v._City of Marion, 918 F.2d 1 178, 1183

(5" Cir. 1990); Foster v. Metropolitan Airports Comm n, 914

F.2d 1076, 1080 (th Cir. 1990); Richardson v. Bonds, 860

F.2d 1427, 1430 "es Cir. 1988); United States v. Rambo, 789

F.2d 1289,1294 cg” Cir. 1986); Trejo v. Perez, 693 F.2d 482,

486 (5™ Cir. 1982); Washington Mobilization Committee v.

14

Cullinane, 566 F.2d 107, 123, rehearing en banc denied

(D.C. Cir. 1977), Saffron v. Wilson, et al., 481 F.Supp. 228,

242 (U.S.D.C. 1979);.United States ex rel. LaBelle v.

LaVallee, 517 F.2d 750, 753-754 (2d Cir. 1975); United

States v. Carr, 445 F.Supp. 1383 (D.Conn. 1978); Craig v.

Krzeminski, 764 F.Supp. 248, 250 .Conn.1991); Klinger v.

United States, 409 F.2d 299, 305 (8th Cir. 1969) (citations

omitted). Cf, Vance v. Nunnery, 137 F.3d 270 (5™ Cir.

1998); Santiago v. Fenton, 89] F.2d 373 (1 Cir. 1989). A

few of the foregoing cases go farther than others, but the

Second Circuit is inconsistent with all.

[W]e do not believe that the officer’s

view of the /egal basis for the arrest is

important...

Disputes about an arresting officer’s

actual state of mind at the time of the arrest

would quickly resolve “themselves into

credibility battles, with each side presenting its

own post hoc explanation of the officer’s

hfe Caine cara tt, tae lente -

15

actions. See Trejo v. Perez, 693 F.2d 482, 486

(5th Cir. 1982)... ..7

It does not even matter that there is some ambiguity

about whether or noi the officer thought he or she had

probable cause to arrest, or even that the officer affirmatively

believed he or she did not have adequate probable cause to

arrest. All that is required is that there exist objective

probable cause for some crime in order that the arrest be

valid. Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75

L.Ed.2d 229 (1983); Peters v. New York, decided with Sibron

3 Richardson vs. Bonds, 860 F.2d 1427, 1430 (7th Cir.

1988).

“Despite the availability of these tactics, the question

of an officer’s actual justification for an arrest would rarely

be capable of resolution at the summary judgment stage, but

would ultimately become a credibility issue for the jury. The

objective of Harlow, that qualified immunity issues be

resolved at the earliest possible stage of the litigation, would

be frustrated. In fact, it is for precisely this reason that

Harlow vs. Fitzgerald , 457 U.S. 800, 815-19 (1982)]

reformulated the qualified immunity analysis to eliminate

inquiry into subjective factors.” - Richardson vs. Bonds,

supra, 860 F.2d at 1430 (some citations omitted; italics in

original).

16

v. New York, 392 U.S. 40, 88 S.Ct. 1889 (1968); United

States v. Salinas-Calderon, 728 F.2d 1298, 1300-1301 (10th

Cir. 1984); Warren v. City of Lincoln, Nebraska, et al., 864

F.2d 1436, 1439-40 (8th Cir. 1989); United States, ex rel.

Senk v. Brierley, 381 F. Supp. 447, 463 (M.D. Pa. 1974),

affd, 511 F.2d 1396 (3d Cir.), cert denied, 423 U.S. 843, 96

S.Ct. 771 46 L.Ed. 2d 63 (1975), quoting from United States

v. Day, 455 F.2d 454, 456 (3d Cir. 1972).

Where the crime charged, although incorrect, is

similar or related to either a proper criminal charge or to the

evidence of criminal activity, the courts effectively recognize

that the officer acted with objective reasonableness in making

the arrest and in levying the particular charge, even though

mistakenly.

This is the classic basis for excusing liability and suit

on grounds of “qualified immunity,” i.e., where the officer

acted with objective reasonableness although mistakenly.

Indeed, we repeatedly argued at trial and on appeal, that at

the very least Officer Haddad is entitled to “qualified

immunity,” Hunter v. Bryant, 502 U.S. 224, 112 S.Ct. 534,

116 L.Ed.2d 589 (1991), since Connecticut law clearly held

17

equally and even less egregious situations are sufficient to

establish guilt of Interfering with an Officer. State v. Weber,

6 Conn. App. 407, 414, 505 A.2d 1266 (1986); State v.

Beckenbach, 1 Conn. App. 669, 679, 476 A.2d 591(1984);

especially see Footnote 1 supra.

Speculation about whether the charging officer was

trying to procure a higher bail or longer pretrial detention, or

speculation about the officer’s subjective view of the legal

(as opposed to the factual) basis for the charges lodged is in

violation of the principle that the validity of the officer’s

action in making an arrest or in levying a criminal charge is

to be examined by objective evidence, not by evaluation of

the officer’s possible Subjective state of mind. Whren, et al

v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d

89, 98 (1996), (“... Subjective intentions play no role in

ordinary, probable-cause Fourth Amendment analysis.”).

Conclusion. There are certainly hundreds of

thousands of arrests and prosecutions annually within the

Second Circuit, and there is an active civil rights bar

specializing in lawsuits alleging police misconduct. Within

18

the Second Circuit arresting officers are exposed to civil

liability solely because of speculation about the subjective

reasons why an officer charged more than one crime based

on the same set of facts.

RESPECTFULLY SUBMITTED,

MARTIN S. ECHTER, Esquire

APPENDIX

fateh It gina

1A

TABLE OF CONTENTS

Ne TID ioc cnc ceceveseceedicncuscusueces. 1A

tiie Jost psc y sl Voss .axpcucdcasass 1A

Ruling on Pending Motions............................ 3A

Supplemental Judgment..............0......0000 000000. 24A

Order of the United States Court

Of Appeals for the Second Circuit................. 28A

Order denying Petition for Rehearing and

Suggestion of En Banc Hearing................... 35A

NN sete ceca cesta Jy Neda ede ace acne crevs 37A

1A

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

ISAAC LIEBERMAN

V. CIVIL NO. 3:95CV2437(AHN) ~

ROBERT DUDLEY, ET AL.

JUDGMENT

This action came on for trial before the Court and a

jury, the Honorable Alan H. Nevas, United States District

Judge, and the issues having been duly tried and the jury

having duly rendered its verdict,

It is therefore ORDERED and ADJUDGED that

judgment be and hereby is entered in favor of the plaintiff

Isaac Lieberman as against David Coppola in the amount of

$4,415.00 for unreasonable force under 42 U.S.C., Sec. 1983;

$15,000.00 punitive damages for unreasonable force under

42 U.S.C., Sec. 1983; and $1,600.00 plus state law punitive

damages for assault and battery; and

In favor of plaintiff Isaac Lieberman as against

Jonathan Haddad in the amount of $9,900.00 for malicious

prosecution under 42 U.S.C., Sec. 1983; $10,000.00 punitive

2A

damages for malicious prosecution under 42 U.S.C., Sec.

1983; and

In favor of plaintiff Isaac Lieberman as against David

Coppola and Jonathan Haddad in the amount of $25,000.00

plus state law punitive damages for intentional infliction of

emotional distress; in accordance with the Jury's verdict.

Dated at Bridgeport, Connecticut this 13th day of

February, 1998.

KEVIN. F. ROWE, Clerk

By

Carol E. Cannady

Deputy in Charge

3A

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

ISAAC LIEBERMAN

V. CIVIL NO. 3:95CV2437(AHN)

ROBERT DUDLEY, ET AL.

RULING ON PENDING MOTIONS

The jury in this case returned a verdict for the

plaintiff on his §1983 claims of malicious prosecution and

unreasonable force as well as on his state law claims of

intentional infliction of emotional distress and assault and

battery. In addition to compensatory damages, the jury

awarded punitive damages on all claims. Presently pending

before the court are the defendants' motion for judgment on

the law [doc. # 75] and the plaintiff's motion for costs and

attomey's fees [doc. # 72] The plaintiff also seeks

calculation of the amount of punitive damages to be awarded

in accordance with the jury's verdict on his state law claims.

4A

Background

The jury awarded the plaintiff $9,900 compensatory

and $10,000 punitive damages against defendant Haddad on

the § 1983 claim for malicious prosecution. It awarded him

compensatory damages of $4.415 and punitive damages of

$15,000 against defendant Coppola on the § 1983 claim for

unreasonable force. With respect to the state law claims, the

jury awarded the plaintiff compensatory damages of $25,000

jointly against defendants Haddad and Coppola for

intentional infliction of emotional distress and $1,600

compensatory damages against defendant Coppola on the

assault and battery clarm. The jury also awarded punitive

damages on both state law causes of action.

The jury returned a verdict for the defendants on the §

1983 claim based on false arrest.

Discussion

I. Judgment As a Matter of Law

The defendants maintain that the jury's verdict for the

plaintiff on the § 1983 malicious prosecution claim must be

set aside because it is inconsistent with the verdict for the

defendants on the § 1983 false arrest claim. The defendants

also assert that the award of damages on the emotional

SA

distress claim cannot stand because it is duplicative of the

damages awarded for assault and battery. They also contend

that the verdicts for unreasonable force and assault and

battery must be vacated because the force was reasonable as

a matter of law, or because the damages are duplicative.

Although the defendants have moved for judgment as

a matter of law, they did not preserve their right to do so at

trial. "The rule is well established that a motion for directed

verdict at the close of all the evidence is a prerequisite for

judgment as a matter of law." Cruz v Local Union No. 3 of

Int'l Bhd. Of Elec. Workers, 34 F.3d 1148, 1155 (2d Cir.

1994). Rather, the defendants should have raised their

post-trial claims in a motion for a new trial pursuant to Fed.

R. Civ. P. 59. See Blissett_v._Eisensmidt, 940 F. Supp.

449, 453 (N.D.N.Y. 1996). A new trial may be granted to

prevent manifest injustice if the trial court is convinced that

(1) the jury verdict is against the weight of the evidence, (2)

the jury reached a seriously erroneous result, or (3) if the

verdict is a miscarriage of justice. See US. East

Telecommunications, Inc. v U.S. West Communications

es LILGLIULIS

Serv. _Inc., 38 F.3d 1289, 1301 (2d Cir. 1994); Smith v.

Lightening Bolt Prod.. Inc., 861 F.2d 363 (2d Cir. 1988);

6A

Katara v D.E. Jones Commodities Inc.-, 835 F.2d 966, 970

(2d Cir. 1978). Unlike a judgment as a matter of law, a new

trial may be granted even if there is substantial evidence to

support the verdict. Song v. Ives Labs. Inc., 957 F.2d 1041,

1047 (2d Cir. 1992). In evaluating a motion for a new trial,

the court is free to weigh the evidence and need not view it in

the light most favorable to the non-moving party. Id.

Accordingly, the court will construe the defendants’ motion

as a motion for new trial and will consider their arguments in

light of that standard.

A. Malicious Prosecution

The defendants arrested the plaintiff and charged him

with interference with a police officer. He was subsequently

prosecuted on-that charge, pleaded not guilty, and was

acquitted. In this action, the jury returned a verdict for the

plaintiff on his claim of malicious prosecution, but not on his

false arrest claim. The defendants now claim that because

the jury found that the plaintiff was lawfully arrested, it was

only logical that the jury found probable cause for instituting

the criminal prosecution. Thus, they assert that the verdict

on the malicious prosecution claim is impermissibly

a iuibieienet BRN inca tini sat Neca en oh he ot ties BO

7A

inconsistent with the verdict on the false ‘arrest claim. The

court does not agree.

Contrary to the defendants’ claim, the jury was not

inconsistent in finding for the plaintiff on the malicious

prosecution claim while finding the defendants not liable for

false arrest. Because the elements establishing each of these

causes of action are different', it is quite possible, and indeed

To prevail on a claim of false arrest in

violation of the Fourth Amendment, a plaintiff must establish

that the arresting officers did not have probable cause for the

arrest. Probable cause requires only a probability or

substantial chance of criminal activity. But a finding of

probable cause is not contingent on whether the officer

articulated the correct basis for the arrest. Thus, the jury was

charged in this case that even if the defendants did not have

probable cause to arrest the plaintiff for interference with a

police officer, the arrest could be found legal if there was

probable cause to arrest the plaintiff on the lesser included

offense of disorderly conduct.

The plaintiff's claim for malicious prosecution

was based on the allegation that one of the defendants filed a

false police report which resulted in his prosecution on the

charge of interfering with a police officer. To prevail on this

claim the plaintiff was required to establish that the

defendant instituted or procured the institution of criminal

proceedings against him with malice and without probable

cause.

8A

probable, that the jury concluded that the defendants had

probable cause to arrest the plaintiff on the lesser offense of

disorderly conduct, but concluded that they did not have

probable cause to charge him with interference with a police

officer. See Posr v. Doherty, 944 F.2d 91, 100 (2d Cir.

1991) (holding that a finding of probable cause on a lesser

charge does not foreclose a malicious prosecution cause of

action where plaintiff was prosecuted on charges requiring

more culpable behavior). As the Second Circuit has noted, if

the rule were otherwise, an officer with probable cause as to

a lesser offense could tack on more serious, unfounded

charges which would support a high bail or a lengthy

detention, knowing that the probable cause for the lesser

offense would insulate him from liability for malicious

prosecution on the more serious offense. See id.

Because there is no inconsistency in the jury's

verdicts on the false arrest and malicious prosecution claims,

the defendants’ motion is denied.

B. Intentional Infliction of Emotional Distress

The defendants also argue that the damage award on

the intentional infliction of emotional distress claim is

duplicative because the plaintiff was compensated for his

emotional distress injuries as an element of damages for the §

1983 violation and the assault and battery claim. They

maintain that the damage award on the intentional infliction

of emotional distress claim must be set aside because -a

plaintiff may not be compensated more than once for the

same injury.

The defendants are correct that a plaintiff may be

compensated only once for an injury. See Gentile v. County

of Suffolk, 926 F.2d 142, 153 (2d Cir. 1991) (holding that if

two causes of action provide a legal theory for compensating

one injury, there can only be one recovery). But the

defendants have not established that this rule was violated in

this case. Although emotional pain is a compensable

component of damages for a § 1983 action based on

unreasonable force and malicious prosecution, the tort of

intentional infliction of emotional distress involves a

component of damages over and above the damages that may

ee ee

10A

be awarded for a § 1983 violation. See Bender v City of

New_York, 78 F.3d 787, 793 (2d Cir. 1996). Here, the

plaintiff presented evidence that he suffered multiple injuries

as a result of the violations of his rights under state and

federal law, including physical injuries, pain and suffering,

medical expenses, emotional distress and attorney's fees. The

evidence supports a finding that the plaintiff suffered discrete

and unduplicated injuries, and that the plaintiff was not

compensated twice for emotional distress.

This conclusion is further supported by the fact that

the jury found only against defendant Haddad on the

malicious prosecution claim and only against defendant

Coppola on the unreasonable force claim, but found against

both defendants jointly on the emotional distress claim. It is

thus reasonable to assume that the jury made a purposeful

apportionment of damages between the different causes of

action. See Indu Craft, Inc. v Bank of Baroda, 47 F.3d 490,

497 (2d Cir. 1995).

Moreover, because the calculation of damages in a §

1983 action may be difficult, especially where, as here, there

were pendent state law claims, district courts must carefully

TDR neat atthe na

11A

instruct the jury that a plaintiff may not be compensated

twice for the same injury merely because the injury may have

been caused by a violation of different rights. See id.

Accordingly. the jury-in this case was instructed to avoid

such duplicative awards” and the court must presume that the

° The jury here was instructed:

Because there is more than one defendant and more

than one claim in this case you must keep in mind that an

injury may be compensated only once and that there may not

be additional compensatory damages for that same injury from

two or more defendants. . .

[A]lthough there are multiple claims in this case, you

should not award compensatory damages more than once for

the same injury. In other words, if two or more causes of

action provide a legal theory for compensating one distinct

injury, only one recovery may be awarded. But if different

injuries are attributed to the separate claims, then you should

compensate the plaintiff for those separate injuries.

If you find that the identical injury was caused by

more than one wrong, you should award damages for the first

such wrong and as to any subsequent wrong, indicate on the

damages line of the verdict form the words "Please see award

number be

12A

jury followed the court's instructions. See Agard v

Portuondo, 117 F.3d 696, 720 (2d Cir. 1997) (citing

Connecticut v. Johnson, 460 U.S. 73, 85 n.14 (1983)).

Because the defendants have not provided clear

evidence that the jury's separate award of compensatory

damages on the state law tort of intentional infliction of

emotional distress is duplicative of the damages awarded for

malicious prosecution and assault and battery, the court must

defer to the jury's findings. See Gentile, 926 F.2d at 153.

The defendants’ motion on this issue is denied.

aa Unreasonable Force and Assault and Battery

Finally, the defendants argue that the verdicts for the

plaintiff on the § 1983 claim based on unreasonable force and

the state law claim for assault and battery cannot stand

because the force used under the circumstances was

reasonable as a matter of law. Alternatively, they maintain

that the jury's award of compensatory damages on both

claims are impermissibly duplicative.

z Sufficiency of the Evidence

There is no merit to the defendants’ claim that the

unreasonable force and assault and battery claims are not

13A

supported by the evidence. To the contrary, the plaintiff

presented evidence that defendant Coppola kicked him in the

head after he had fallen to the ground and that he suffered

serious injuries. This evidence is sufficient to sustain the

verdict on both claims. See Galdieri-Ambrosini v National

Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir. 1998).

ZL Duplicative Damage Awards

There is also no merit to the defendants’ claim that

the jury impermissibly awarded duplicative damages on the

Sec. 1983 unreasonable force claim and the state law claim of

assault and battery.

The flaw in the defendants’ argument is that a jury

award is not duplicative merely because it allocates damages

under the two distinct causes of action. See Indu Craft, 47

F.3 at 497; Gentile, 926 F.2d at 154. While it is possible that

the jury impermissibly compensated the plaintiff twice for

the same injury, it is also plausible that the separate awards

represent a purposeful apportionment of damages between

the two causes of action. Thus, because the court must

reconcile and preserve wherever possible a seemingly

duplicative or inconsistent jury verdict, see Indu Craft, 47

14A

F.3d at 497, the court may overturn the verdicts only if it

would have been impossible for the jury to have awarded

separate and distinct damages on the unreasonable force and

assault and battery claims. See id.; Gentile, 926 F.2d at 154.

It is not impossible that the jury found the plaintiff suffered

damages in the amount of $6,015 as a result of the force used

by defendant Coppola and that it merely allocated that

amount between the federal and the state causes of action.

Thus, the verdicts on these two causes of action will not be

set aside.

II. Attorney's Fees Under § 1988 & State Law Punitive

Damages

The plaintiff moves for an award of attorney's fees

and costs under 28 U.S.C. § 1988 as well as punitive

damages in accordance with the jury's verdict on the state law

claims. He asserts that under Connecticut law the amount of

punitive damages is measured by the amount of the plaintiff's

attorney's fees and non-taxable costs. Thus, he seeks

one-third of the amount of compensatory damages awarded

on the two state law claims in accordance with the

contingency fee agreement he has with his attorney.

ISA

The defendants argue that the plaintiff is not entitled

to state law punitive damages because under Connecticut law

only litigation expenses may be recovered as punitive

damages. Thus, because the plaintiff will recover his

litigation expenses under § 1988, the defendants maintain

that an award of state-law punitive damages would be

impermissibly duplicative.* Alternatively, the defendants

argue that punitive damages on the state law claims would be

impermissibly duplicative of the punitive damages awarded

on the § 1983 claims.

The question of whether a plaintiff may recover state

law punitive damages. as limited by litigation expenses, as

well as a statutory award of attorney's fees under § 1988

presents a novel issue of Connecticut law for which there is

no direct authority. The defendants’ rely on Berry v. Loiseau,

223 Conn. 786, 807 (1992). The plaintiff, also relying on

: There is no merit to the defendants’ additional

contentions that the contingency fee arrangement in this case

is, under Connecticut law, the exclusive method for

compensating the plaintiff for his attorney's fees, or that the

court may not consider the contingency fee agreement in

assessing the amount of punitive damages. See Berry v.

Loiseau, 223 Conn. 786, 829-30 (1992).

16A

Berry,’ maintains that the defendants’ argument is based on a

fundamental misunderstanding of state law. He asserts that

the proper interpretation of Connecticut law relating to ~

punitive damages is that the amount of punitive damages is

only measured, or capped, by the amount of attorney's fees,

and are not limited to attorney's fees.

The court disagrees. It appears to be well settled that

common-law punitive damages in Connecticut are only

intended to compensate the plaintiff for his litigation

expenses less taxable costs. See id, at 825. Indeed, the

continuing viability of this longstanding and well-established

rule was reaffirmed in Berrv, where the court declined an

invitation to abandon it in favor of punitive damages based

on a theory of vindication or retribution. In so doing, the

. The plaintiff incorrectly asserts that Berry

specifically permitted the plaintiff to recover attorney's fees

under both the federal civil rights statute and as state law

punitive damages. To the contrary, Berrx did not involve a §

1983 claim. It involved an employee's action against his

former employer for false imprisonment, assault and battery,

wrongful termination, breach of the covenant of good faith,

defamation, and intentional infliction of emotional distress.

See Berrv, 223 Conn. at 786.

17A

court noted "the long line of cases holding that common law

punitive damages serve primarily to compensate the plaintiff

for his injuries," and that the Connecticut rule "fulfills the

salutary purpose of fully compensating a victim for the harm

inflicted on him. . . ." Id. (citations and internal quotations

omitted).°

> In Linsley_v. Bushnell, 15 Conn. 225 (1842), the

Connecticut Supreme Court first sanctioned an award of

vindictive damages or "smart money" to a plaintiff who

prevailed in a case of wanton and malicious injury. The

court held that such damages were permissible because a

successful plaintiff had a "right to recover an actual

indemnity for the expense to which the defendant's

misconduct has subjected him." Id. at 236-37. The rule

developed because litigation expenses were not considered a

natural or proximate consequence of the defendant's

wrongful act and thus could not be recovered as a component

of actual damages. See St Peter's Church v. Beach, 26 Conn.

355, 366 (1857). Rather, where the defendant's conduct was

not wanton or malicious, courts generally recognized that

"the defendant should not be punished by being compelled to

pay not only his own counsel but such as the plaintiff may

please to select to advocate his claims against the defendant,

but each should be left to conduct his own case, and in his

own way, and at his own expense beyond what the statute

allows in a bill of costs to the prevailing party." Id. at

366-67. See also Platt v. Brown, 30 Conn. 336, 342-43

18A

For these reasons, the court finds that the plaintiff is

entitled to punitive damages in an amount equal to the

attorney's fees for which he would be liable under the

contingency fee agreement. Thus, the plaintiff may recover

one-third of the $25,000 compensatory damage award, or

$8.333.33. on the emotional distress claim, and one-third of

the $1,600 compensatory damage award on the assault and

2 26

battery claim, or $533.33.” The plaintiff is also entitled to

non-taxable costs of $800, representing the disbursement for

(1862) (stating that the reason for allowing exemplary

damages in the amount of litigation expenses over and above

taxable costs is so that a plaintiff may recover full indemnity

for injuries caused by the wanton act of a defendant).

. The plaintiff sought one-third of the compensatory

damage award of $25,000 from each defendant, or

$16,666.66 on the emotional distress claim and one-third of

the $1,600 compensatory damage award, or $533.33, from

Coppola on the assault and battery claim. The plaintiff

offered no authority to support his claim of entitlement to

one-third of the award from each defendant, and the court can

find none. Nonetheless, the court finds that an award of

one-third of the compensatory damage award from each

defendant would be unreasonable and contrary to the plain

language of the contingency fee agreement between the

plaintiff and his attorney.

19A

expert witness fees which the court finds was reasonably

necessary for prosecuting this action. See Markey v.

Santangelo, 195 Conn. 76, 80 ( 1985). However, to avoid a

windfall and an impermissible double recovery of legal fees

for the same services rendered on the federal and State

claims, this amount must be deducted from the amount of

attomey's fees awarded under § 1988. Cf. Higgins v.

Burlegh, Civil No. 3:92vev642 (D. Conn. May 6, 1997).

In determining a reasonable attorney's fee award

under 42 U.S.C. § 1988, the court multiplies the number of

hours reasonably expended by the hourly rate prevailing in

the community for similar services by lawyers of reasonably

comparable skill, experience and reputation. See Blum v.

Stenson, 465 U.S. 886, 896 n.11 ( 1984). Here, the plaintiff's

counsel has filed an affidavit in which he seeks

reimbursement for 62.1 hours at an hourly rate of $300. The

defendants do not dispute the reasonableness of the time

spent by the plaintiff's attorney, but maintain that the $300

hourly rate is excessive and not comparable with the

prevailing rate for attorneys in the District of Connecticut

20A

with the skill and experience of the plaintiff's attorney. The

court agrees.

A fee applicant must produce satisfactory evidence

"that the requested rates are in line with those prevailing in

the community for similar services by lawyers of reasonably

comparable skill, experience, and reputation." Blum, 465

U.S. at 895-96. Although the plaintiff submitted an affidavit

of his attorney in support of the requested hourly rate, he has

not submitted any evidence showing that the requested rate is

in line with the rate in the community for other lawyers with

the same expertise and experience. Thus, the court may rely

on its knowledge of the prevailing market rates in this

community, and the rates that other Connecticut courts have

found reasonable. See Miele v. York State at Teamsters

Conf. Pension & Ret. Fund, 831 F.2d 407, 409 (2d Cir.

1987). |

Based on the court's knowledge of the prevailing

market rates in Connecticut as well as on a survey of recent

attorney's fee awards in this District, the court concludes that

an hourly rate of $250 is the prevailing rate for a civil rights

attorney with the skill and experience of the plaintiff's

21A

attorney. See Skubel v. Sullivan, No. 90-279, 1998 WL

136176, at *3 (D. Conn. Mar. 11,1998) (awarding $250 per

hour for lawyer with twenty-three years specialized federal

court experience who also teaches at Yale Law School);

Laudano v. City of New Haven, No. 330523, 1998 WL

281824 (Conn. Super May 14, 1998) (finding $250 per hour

reasonable in civil rights case for partners with over twenty

years experience); CG v. New Haven Bd. of Ed., 988 F.

Supp. 60, 69 (D. Conn. 1997) (awarding $250 per hour to

partner in Connecticut firm with twenty-two years of

specialized litigation experience in federal court).

Accordingly, the plaintiff is entitled to an award of

attorney's fees in the amount of $15.525. However, to avoid

a windfall and duplicate fees for the same services, this

amount must be reduced by $8,866.66. representing the

attorney's fees awarded on the state law claims of emotional

distress and assault and battery. The plaintiff is also entitled

to costs reasonably incurred in prosecuting this case,

including filing fees, witness fees and process server fees,

which total $435.

22A

II. Remittitur

The defendants also maintain that the jury's verdicts

are excessive and that the court should grant a remittitur.

Remittitur is the "process by which a court compels a

plaintiff to chose between reduction of an excessive verdict

and a new trial." Earl v -Bouchard Transp. Co., 917 F.2d

1320, 1328 (2d Cir. 1994) (quoting Shu Tao Lin v

McDonnell Douglas Corp., 742 F.2d 45, 48 (2d Cir. 1984)).

Because the court does not find the jury's verdicts to be

excessive, there is no ground to support a remittitur in this

case. See id.

CONCLUSION

For the foregoing reasons, the defendants’ motion for

judgment on the law [doc. # 75] is DENIED. The plaintiff's

motion for attorney's fees and costs [doc. # 72] is

GRANTED. A supplemental judgment in the amount of

$16,760, representing common-law punitive damages in the

amount of $9,666.66 and attorney's fees and costs under §

1988 in the amount of $7,093.34, shall enter in the plaintiff's

favor.

23A

SO ORDERED this day of July, 1998 at Bridgeport,

Connecticut.

Alan H. Nevas

United States District Judge

24A

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

ISAAC LIEBERMAN

v. CIVIL NO. 3:95CV2437(AHN)

ROBERT DUDLEY, ETAL. .

SUPPLEMENTAL JUDGMENT

The jury having found in favor of the plaintiff on his

complaint and now comes counsel or the plaintiff for

consideration of award for attorneys fees before the

Honorable Alan H. Nevas, United States District Judge, and

The Court having considered the motion and all the

papers submitted in connection herewith issued its Ruling on

Pending Motions denying the defendants’ motion for

judgment m the law and granting the plaintiffs motion for

attorney's fees and costs and further directed he Clerk to enter

a supplemental judgment in the amount of $16,760.00,

representing common-law punitive damages in the amount of

$96,666.66 and attorney's fees and costs finder Sec. 1988 in

the amount of $7,093.34 in favor of the plaintiff,

ve

—

25A

It is therefore ORDERED and ADJUDGED that

judgment be and hereby is entered in favor of the plaintiff

Isaac Lieberman as against the defendants in the amount of

$16,760.00, in accordance with the Court's order.

Dated at Bridgeport, Connecticut on this 7th day of

August, 1998.

KEVIN F. ROWE, Clerk

By:

Carol E. Cannady,

Deputy in Charge

26A

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

ISAAC LIEBERMAN NO. 3:95CV2437(AHN)

v.

ROBERT DUDLEY,ET AL. AUGUST 26, 1998

NOTICE OF APPEAL

The defendants Jonathan Haddad and David Coppola

herewith give notice of appeal from all portions of the

January 9, 1998 verdict adverse to each of them, from hat

portion of the Judgment of February 13, 1998 adverse to each

of them, from the vial Court's Ruling on Pending Motions

(including, but not limited to, posttrial motion for idgment on

the law, imposition and calculation of state law punitive

damages, and sward of attorney fees and costs), filed July 27,

1998, and from the Supplemental udgment filed August 7,

1998.

27A

RESPECTFULLY SUBMITTED,

BY:

Martin S. Echter, Esquire

c/o Office of Corporation Counsel

165 Church Street

New Haven, CT 06510

Phone: (203) 946-7958

Fax: (203) 946-7942

Fed. Bar No. ct07596

PAGER: 1-860-590-4432

28A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE

PUBLISHED IN THE FEDERAL REPORTER AND

MAY NOT BE CITED AS PRECEDENTIAL

AUTHORITY TO THIS OR ANY OTHER COURT,

BUT MAY BE CALLED TO THE ATTENTION OF

THIS OR ANY OTHER COURT IN A SUBSEQUENT

STAGE OF THIS CASE, IN A RELATED CASE,OR IN

ANY CASE FOR PURPOSES OF COLLATERAL

ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the United States Courthouse,

Foley Square, in the City of New York on the 7 day of OCT,

one thousand nine hundred and ninety-nine.

PRESENT:

HONORABLE JAMES L. OAKES,

HONORABLE ELLSWORTH VAN GRAAFEILAND,

HONORABLE ROBERT D. SACK,

Circuit Judges.

29A

ISAAC LIEBERMAN.

Plaintiff-Appellee,

-V. - No. 98-9165

ROBERT DUDLEY and J. SAVINELLI,

Defendants

JONATHAN HADDAD and DAVID W. COPPOLA,

Defendants-Appellants.

APPEARING FOR APPELLANT:

Martin S. Echter, Office of the

Corporation Counsel City of New

Haven, Connecticut. New Haven, CT.

APPEARING FOR APPELLEE:

Norm Pattis (John R. Williams, of

counsel), New Haven, CT.

30A

Appeal from the United States District Court for the

District of Connecticut (Alan H. Nevas, Judge).

UPON DUE CONSIDERATION, IT IS-HEREBY

ORDERED, ADJUDGED AND DECREED that the

judgment of said District Court be and it hereby is

AFFIRMED.

Jonathan Haddad and David W. Coppola appeal from

a February 13, 1998 judgment of the United States District

Court for the District of Connecticut (Allan H. Nevas, Judge)

following a jury verdict finding Haddad liable for malicious

prosecution, Coppola liable for unreasonable use of force and

assault and battery, and both defendants liable for intentional

infliction of emotional distress. Compensatory and punitive

damages were awarded on each cause of action.

After judgment was entered against them, the

defendants filed a motion for judgment on the law that the

district court denied in its Ruling on Pending Motions of July

24, 1998. Ina Supplemental Judgment of August 7, 1998,

the court calculated the plaintiff's total punitive damages

award. Haddad and Coppola appeal these rulings as well as

the judgment.

31A

Haddad and Coppola are New Haven police officers.

On November 13, 1993, they, in the company of other

officers, responded to a report of a woman being beaten.

When they arrived on the scene, they became involved in an

altercation with Juan Abreu, a tenant of the plaintiff, Isaac

Lieberman. Lieberman intervened because he believed that

the police were beating Abreu while he was handcuffed and

vomiting and that Abreu might therefore be injured or killed.

Lieberman was arrested for interfering with the police

and was subsequently prosecuted in Connecticut Superior

Court. He was acquitted on January 23, 1995. Lieberman

then brought this suit under 43 U.S.C. § 1983, alleging that

he had been falsely arrested, maliciously prosecuted, exposed

to unreasonable force, assaulted and battered, and suffered

intentional infliction of emotional distress. The jury found

that no false arrest had taken place, but that Haddad's

preparation of a false police report constituted a malicious

prosecution and that Coppola had used unreasonable force in

arresting Lieberman. Both defendants were found to have

intentionally inflicted emotional distress upon the plaintiff.

32A

On appeal, the defendants argue that the jury's finding

that no false arrest occurred is irreconcilable with the

malicious prosecution verdict, that there was insufficient

evidence to support the verdicts, that there were no grounds

for independent damages on the intentional infliction of

emotional distress claims, that the trial judge erred in not

allowing them to impeach the testimony of Abreu, and that

the district court calculated punitive damages incorrectly.

Probable cause is a necessary component of both a

proper arrest and a proper prosecution. A finding of probable

cause to arrest does not, however, foreclose a cause of action

for malicious prosecution if the plaintiff was prosecuted on a

more serious charge for which there was no probale cause.

See Posr v. Doherty, 944 F.2d 91, 100 (2d Cir. 1991). If the

rule were otherwise, plaintiffs would have no remedy if they ~

were arrested on a minor charge and maliciously prosecuted

on a more serious one. Id. There is therefore no

contradiction between the false arrest and malicious

prosecution verdicts in the present case.

The defendants argue that the causes of action for

unreasonable use of force and assault and battery overlap,

33A

and that the intentional infliction of emotional distress claim

overlaps all of the other claims against them. They therefore

assert that the jury must have awarded duplicative damages.

However, "a jury's award is not duplicative simply

because it allocates damages under two distinct causes of

action." Indu Craft, Inc. v. Bank of Baroda, 47 F.3d 490.

497 (2d Cir. 1995). Moreover, this Court has noted that, "the

tort of inflicting emotional distress in the context of a false

arrest Or a malicious prosecution possibly involves some

component of damages over and above the damages that may

be awarded for these police misconduct torts." Bender y

City of New York, 78 F.3d 787 (2d Cir. 1996). In its jury

instruction the district court gave exactly the kind of detailed

warning about duplicative damage awards that we asked for

in Bender. We therefore have no basis upon which to set

aside the awards returned by the jury.

As for the impeachment of Abreu's testimony by

evidence of his conviction of a crime subsequent to his

recorded testimony, evidentiary errors are not grounds for

reversal unless affirmance would be "inconsistent with

substantial justice." Fed. R. Civ. P. 61. There is nO reason to

34A

believe that permitting defendants to further impeach Abreu's

already impeached testimony through introduction into

evidence of his subsequent conviction would have had a

significant impact on the jury's assessment of his credibility,

let alone the verdict. It was within the trial court's discretion,

moreover. to prohibit the use of Abreu's conviction for

impeachment purposes if such information was, in its

judgment, more prejudicial than probative. Fed. R. Evid

.804(b)(1), 806, 403.

Finally, we affirm the district court's damage award

without commenting on the methodology it employed, a

point of contention among the parties. The parties conceded

at oral argument that the amount to be paid by the defendants

would be the same no matter which method was used.

The judgment of the District Court is hereby

AFFIRMED.

FOR THE COURT,

Karen Greve Milton, Acting Clerk

By:

35A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

UNITED STATES COURT HOUSE

40 FOLEY SQUARE

NEW YORK 10007

KAREN GREVE MILTON

ACTING CLERK

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the United States

Courthouse, Foley Square, in the City of New York, on the

day of December one thousand nine hundred and

ninety-nine.

Lieberman

Plaintiff-Appellee,

V Dkt No: 98-9165

Haddad

Defendant-Appellant.

36A

A petition for panel rehearing and a petition for

rehearing en banc having been filed herein by the appellant

Haddad.

Upon consideration by the panel that decided the

appeal, it is Ordered that said petition for rehearing is

DENIED.

It is further noted that the petition for rehearing en

banc has been transmitted to the judges for the court in

regular active service and to any other judge that heard the

appeal and that no such judge has requested that a vote be

taken thereon.

FOR THE COURT

Karen GREVE MILTON, Acting Clerk

By:

Beth J. Mead ,

Administrative Attorney

37A

MANDATE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

THIS SUMMARY ORDER WII?. NOT BE

PUBLISHED IN THE FEDERAL REPORTER AND

MAY NOT BE CITED AS’ PRECEDENTIAL

AUTHORITY TO THIS OR ANY OTHER COURT,

BUT MAY BE CALLED TO THE ATTENTION OF

THIS OR ANY OTHER COURT IN A SUBSEQUENT

STAGE OF THIS CASE, IN A RELATED CASE,OR IN

ANY CASE FOR PURPOSES OF COLLATERAL

ESTOPPEL OR RES JUDICATA.

Ata stated term of the United States Court of Appeals

tor the Second Circuit, held at the United States Courthouse,

Foley Square, in the City of New York on the 7 day of OCT,

one thousand nine hundred and ninety-nine.

PRESENT:

HONORABLE JAMES L. OAKES,

HONORABLE ELLSWORTH VAN GRAAFEILAND.

HONORABLE ROBERT D. SACK,

Circuit Judges.

38A

ISAAC LIEBERMAN,

Plaintiff-Appellee,

-V. - No. 98-9165

ROBERT DUDLEY and J. SAVINELLI,

Defendants

JONATHAN HADDAD and DAVID W. COPPOLA,

Defendants-Appellants.

MANDATE

Jan 21 2000

39A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

UNITED STATES COURT HOUSE

40 FOLEY SQUARE

NEW YORK 10007

ISAAC LIEBERMAN,

Plaintiff-Appellee,

<¥.« No. 98-9165

ROBERT DUDLEY and J. SAVINELLI.

Defendants

JONATHAN HADDAD and DAVID W. COPPOLA.

Defendants-Appellants.

MOTION FOR STAY OF MANDATE

40A

ORDER

BEFORE: HON. ROBERT D. SACK, HON. JAMES L.

OAKES, HON. ELLSWORTH VAN GRAAFEILAND,

C.JJ.

IT IS HEREBY ORDERED that the motion be and it

hereby is DENIED

FOR THE COURT:

KAREN GREVE MILTON

ACTING CLERK

By

Beth J. Meador

Administrative Attorney

Jan 21 2000