Zellner v. Summerlin

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05-6309-cv Zellner v. Summerlin 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 - - - - - - 4 August Term, 2006 5 (Argued: February 23, 2007 Decided: July 20, 2007) 6 7 Docket No. 05-6309-cv 8 _________________________________________________________ 9 JOHN ROBERT ZELLNER, 10 Plaintiff-Appellant, 11 - v. - 12 ROBERT G. SUMMERLIN, TROOPER, and MAJOR WEBER, 13 Defendants-Appellees, 14 STATE OF NEW YORK, NEW YORK STATE POLICE DEPARTMENT, 15 and JOHN DOES 1-10, 16 Defendants. 17 _________________________________________________________ 18 Before: KEARSE, CABRANES, and KATZMANN, Circuit Judges. 19 Appeal from a judgment of the United States District Court 20 for the Eastern District of New York, Sandra L. Townes, Judge, (1) 21 granting judgment as a matter of law in favor of defendants- 22 appellees on plaintiff's false arrest and malicious prosecution 23 claims, following a jury verdict in plaintiff's favor on those 24 claims, and (2) denying plaintiff's motion for a new trial on his 25 excessive force claim following a jury verdict in defendants' favor 26 on that claim. See 399 F.Supp.2d 154 (2005). 27 Reversed in part and remanded; affirmed in part. 1 SCOTT A. KORENBAUM, New York, New York 2 (Frederick K. Brewington, Hempstead, New York, 3 on the brief), for Plaintiff-Appellant. 4 RICHARD DEARING, Assistant Solicitor General, 5 New York, New York (Eliot Spitzer, Attorney 6 General of the State of New York, Michael S. 7 Belohlavek, Senior Counsel, Mariya S. Treisman, 8 Assistant Solicitor General, Charleen Hsuan, 9 Legal Intern, New York, New York, on the 10 brief), for Defendants-Appellees. 11 KEARSE, Circuit Judge: 12 Plaintiff John Robert Zellner appeals from a final 13 judgment of the United States District Court for the Eastern 14 District of New York, Sandra L. Townes, Judge, dismissing his 15 claims, brought under 42 U.S.C. § 1983, against defendants Robert G. 16 Summerlin and Thomas Weber (collectively "defendants"), as members 17 of the New York State Police ("State Police"), for false arrest, 18 malicious prosecution, and use of excessive force during arrest. 19 Following jury verdicts awarding Zellner a total of $85,500 in 20 compensatory and punitive damages on the false arrest and malicious 21 prosecution claims, the district court granted defendants' motion 22 pursuant to Fed. R. Civ. P. 50(b) for judgment as a matter of law 23 dismissing those claims on the ground of qualified immunity. On 24 appeal, Zellner contends principally that, in granting judgment as 25 a matter of law, the district court impermissibly decided questions 26 of fact. He also contends that the jury's verdict in favor of 27 defendants on his excessive force claim should have been set aside, 28 and a new trial granted on that claim. Because we conclude that, in 29 granting judgment as a matter of law, the district court erred by 30 making factual findings adversely to Zellner, rather than viewing -2- 1 the record in the light most favorable to him, we reverse so much of 2 the judgment as dismissed Zellner's false arrest and malicious 3 prosecution claims; we remand for entry of an amended judgment 4 reinstating the jury's awards of compensatory and punitive damages 5 on those claims. We affirm so much of the judgment as dismissed the 6 excessive force claim. 7 I. BACKGROUND 8 The present action arises out of a February 25, 2000 9 demonstration protesting the construction of a new housing 10 development called Parrish Pond, across a highway from the 11 Shinnecock Indian Reservation ("Shinnecock Reservation" or 12 "Reservation") in the Town of Southampton, New York (the "Town"). 13 Photographs introduced at trial as plaintiff's exhibits ("PX") 14 showed demonstrators holding placards stating, e.g., "Sacred Land," 15 "Indian Land Forever," and "Stop the Desecration." 16 Zellner, a sixty-odd-year-old adjunct professor of 17 American history at Southampton College, served as co-chair of the 18 Southampton Anti-Bias Task Force, a committee of citizens appointed 19 by the Town to investigate complaints of bias and discrimination. 20 He was called to the site of the demonstration by Benjamin Haile, a 21 Shinnecock Reservation resident. 22 The scene of the demonstration was a field area 23 surrounding a grass-and-dirt driveway leading from a paved two-way 24 public road to the Parrish Pond development construction site. 25 Troopers from the State Police were present; Weber, a major, was in -3- 1 charge. During the demonstration, a construction-related truck 2 attempted to enter the driveway and was temporarily blocked by some 3 of the protestors. Zellner was arrested and charged with disorderly 4 conduct in violation of N.Y. Penal Law ("Penal Law") § 240.20(5) 5 (McKinney 2000), and resisting arrest, in violation of N.Y. Penal 6 Law § 205.30 (McKinney 1999). More than a year later, after over a 7 dozen court appearances and adjournments, the charges against him 8 were dismissed for lack of prosecution. 9 A. The Present Action 10 Zellner brought the present § 1983 action in 2002, 11 alleging, to the extent pertinent here, claims of false arrest, 12 malicious prosecution, and use of excessive force during arrest. A 13 trial was held on those claims against Major Weber and Trooper 14 Summerlin (other claims and defendants having been dismissed 15 earlier). The trial produced sharply divergent versions of the 16 events leading to Zellner's arrest. The witnesses included Zellner 17 and several residents of the Shinnecock Reservation who supported 18 his version, and Major Weber, Trooper Summerlin, and several other 19 troopers who supported key elements of defendants' version. In 20 addition, a videotape, produced by a camera that had been mounted on 21 one of the State Police vehicles, was played. -4- 1 1. Testimony by Zellner and Reverend Davis 2 Early on the morning of February 25, 2000, Zellner 3 received a call at home from Haile, asking him to "look at a 4 situation on St. Andrew's Road, just off the reservation." (Trial 5 Transcript ("Tr.") at 340.) Zellner responded that he was involved 6 in a project; he suggested that Haile instead call the other co- 7 chair of the Anti-Bias Task Force, but that if Haile were unable to 8 find someone else to help he should call Zellner again. Eventually 9 Haile called Zellner back, stating "we need you." (Tr. 341.) 10 Zellner arrived at the demonstration site on St. Andrew's 11 Road sometime after noon and was greeted by Reverend Holly Davis, a 12 pastor at two area Presbyterian churches, who introduced him to some 13 of the protestors. For about a half-hour, Zellner received 14 information about the situation from some of the Shinnecock elders 15 and from Reverend Davis, learning that the Shinnecocks had sought 16 and been granted a temporary injunction against the construction 17 work and that a written restraining order was on the way. Reverend 18 Davis had been engaged in discussions with Major Weber most of the 19 day (see id. at 47-48, 49; see also id. at 94 (testimony of Weber: 20 "The Reverend Davis was telling me all afternoon that the paperwork 21 was being signed, that it was coming. I wanted the injunction order 22 to cease work to arrive so I could calm things down."). After 23 Zellner arrived, Davis, accompanied by a few others including a 24 79-year-old woman who was a Shinnecock elder, introduced Zellner to 25 Major Weber. (See id. at 49, 344.) 26 Zellner and Weber shook hands, and Zellner identified 27 himself as co-chair of the Anti-Bias Task Force. Zellner described -5- 1 his ensuing conversation with Major Weber--and the arrest--as 2 follows: 3 I explained that I had been called and asked to come 4 down and talk to the police and--in an effort to 5 keep things calm. 6 Q. And, sir, did he respond to you at that 7 point? 8 A. He did. He said, what--he asked me what 9 business was it of mine, and I said--I reiterated I 10 was co-chair of the Anti-Bias Task Force and that I 11 was asked by the community to make sure that he knew 12 that there was a restraining order against the work 13 going on in that area and that the--that I 14 understood that the restraining order was on the way 15 and would they be able to wait before they took any 16 action until the restraining order got there. 17 Q. At that point, sir, what was your demeanor? 18 Can you describe that for the jury. 19 A. My demeanor was very respectful. It was 20 quiet because everybody there was very solemn and 21 respectful and quiet. 22 Q. And, sir, what next happened, please. 23 A. Major Weber indicated that he knew that 24 there was a restraining order and he said it's not 25 here yet, and I said, I understand it's not here, 26 but I just wanted to make sure that you know it's on 27 the way, and what we're concerned about is that 28 there's an evenhanded treatment of everyone in this 29 situation. 30 Q. Did he respond to you at that point? 31 A. Well, he didn't, and I said, [c]ould you 32 assure me that there will be evenhanded treatment? 33 And he said, with some excitement, that we had to 34 keep the road open, and I had observed that the road 35 was--the traffic was moving back and forth on the 36 road, and I said, [i]t seems that everything is 37 reasonable at this moment. 38 Q. Then what happened? 39 A. With that--while I was literally speaking 40 to the major, just a few seconds after we had 41 actually shaken hands, I was grabbed from behind and -6- 1 pushed down and pulled backwards out of in front of 2 the major. 3 Q. And at that time, sir, did you [have] 4 anything in your hands? 5 A. I had--still had a coffee cup. I think I 6 had put it down at some point, but I had picked it 7 back up. I had a coffee cup in my hand, as I 8 recall. That's the only thing I had in my hand. 9 Q. And, sir, at the point that you were 10 pulled, as you indicated, what next happened? 11 A. I was very roughly pulled out and my arm 12 was placed behind my back and my arm was twisted 13 extremely painfully and I looked over my right 14 shoulder and I said, "You're breaking my arm. 15 Please don't break my arm." 16 . . . . 17 Q. Now, sir, at that point that you said that, 18 was there any response to your statement? 19 A. Yes. 20 Q. What was the response? 21 A. The response was a much more severe 22 twisting of my arm and the words, "Resisting are 23 you?" And I said, "No. You're breaking my arm, 24 please don't break my arm." 25 (Tr. 344-46 (emphasis added); see also id. at 380 ("I was face-to- 26 face with Major Weber and I was grabbed from behind, pulled 27 backwards and down.").) 28 Zellner testified that his right arm was held at the elbow 29 while his wrist was being "turned in the way that [his] arm didn't 30 turn," and he could feel the cartilage or tendons cracking. (Id. at 31 349.) He stated that he was also kicked or kneed in the jaw and 32 that his left knee was either kicked or stepped on. (See id. at 33 350.) Zellner later learned that one of the troopers who had 34 grabbed him from behind was Summerlin. (See id. at 346.) -7- 1 Zellner testified that before being grabbed, he "was not 2 asked to do anything" and "was not ordered to do anything." (Id. at 3 453; see also id. at 381.) He "was simply grabbed from behind," 4 without any idea of why or by whom, and was not even "told that [he] 5 was under arrest." (Id.) Zellner testified that he "didn't give 6 any resistance except verbally asking them not to injure [his] arm 7 further." (Id. at 351.) 8 Reverend Davis testified that after she introduced Zellner 9 to Major Weber, she was never more than 10 feet from Zellner before 10 he was taken away by the troopers. (See Tr. 71, 79.) She testified 11 that before Zellner was grabbed by the troopers, she did not hear 12 any of the troopers give him an order. (See id. at 80.) As she and 13 Zellner and the others were all "standing there" (id. at 50), "they 14 grabbed Bob[;] . . . I called it an attack in my deposition, and 15 down on the ground he was" (id. at 51). 16 2. The Testimony of Major Weber 17 Major Weber testified that he had been informed by 18 Reverend Davis on February 25 that an injunction order was being 19 signed, ordering the cessation of construction work at the site. 20 When Zellner arrived, Weber "was waiting for the injunction to 21 arrive so we could put things to rest." (Tr. 94.) Weber and 22 Zellner shook hands, and Weber "said to Mr. Zellner, are you the 23 lawyer. He said yes." (Id.) 24 Q. When he said yes, . . . what is the next 25 thing that you say happened? 26 A. I said to him, where is the paperwork. -8- 1 Q. Did he respond to you? 2 A. Yes. 3 Q. What did he say? 4 A. He said you keep these--keep this truck out 5 of here even without the paperwork. 6 (Id. at 95.) 7 Major Weber testified that when he proceeded to inform 8 Zellner that trucks were coming in to refuel on-site equipment and 9 instructed one of the troopers to let the arriving truck enter, 10 Zellner sat down on the ground. (See, e.g., id. at 133-34, 176.) 11 Weber stated that at first he thought Zellner had had a heart 12 attack, but Zellner then yelled for everyone else to sit down as 13 well. (See, e.g., id. at 135, 176.) Weber testified that he was no 14 more than six or eight inches from Zellner at the time, and he 15 described the event as follows: 16 Q. When you were standing that distance from 17 Mr. Zellner, could you describe for the jury how you 18 claim he sat down? 19 A. I shook hands with Mr. Zellner. He 20 introduced himself. I said, are you the lawyer. 21 Mr. Zellner replied, either yes or yeah. I said, 22 where is the paperwork, meaning the injunction. He 23 started saying that you should keep these trucks out 24 without the paperwork. 25 . . . . 26 I explained to Mr. Zellner that the truck was 27 coming in to refuel equipment so they could leave. 28 They already stopped the work. They wanted to leave 29 the scene to go to other projects for the next 30 thirty days, construction projects. They needed 31 some of their equipment. Their purpose was to gas 32 the equipment and leave. 33 With that, Mr. Zellner again said to me, you 34 should keep the trucks out. I was confused. The 35 trucks were going to move out in ten or fifteen -9- 1 minutes. 2 With that I said to him, the trucks are coming 3 in and they [sic] are coming in now. And I told my 4 captain . . . [to] get these trucks [sic] in because 5 the trucks [sic] created a danger to the children 6 that were at the scene. [The captain] proceeded to 7 try to get the trucks [sic] in. 8 With that, Mr. Zellner dropped to the ground 9 right in front of me. 10 Q. Okay. Sir, can you describe how Mr. 11 Zellner dropped to the ground? 12 A. Mr. Zellner proceeded down. While 13 attempting to sit down he stated, everybody down, 14 everybody down. Then he either went down on his 15 backside or on his ankles. 16 Q. Sir, when you say either went down on his 17 backside or his ankles, [you] were standing six 18 inches from him? 19 A. Yes. 20 Q. So which was it? 21 A. Either his rectum or his ankles. I am not 22 sure. 23 Q. Sir, he didn't-- 24 A. This happened in a split second. 25 Q. He didn't sit on his rectum, did he? 26 A. Either sat on his backside or his ankles. 27 Q. Sir, when this happened, that being Mr. 28 Zellner allegedly sitting down on his ankles or his 29 backside, as you indicated, were there other 30 officers standing right behind Mr. Zellner? 31 A. I don't know. 32 Q. Take a look at the picture, sir. Did their 33 position change any? You are looking at [PX] 19-A, 34 right? 35 A. This picture doesn't tell me that Mr. 36 Zellner is going to sit down. He's standing up. - 10 - 1 . . . . 2 Q. Was the position of the officers with 3 regard to Mr. Zellner different from the point at 4 which [PX] 19-A depicts and the point at which Mr. 5 Zellner sat down on his ankles or his backside? 6 A. At the time, when Mr. Zellner dropped, I 7 didn't notice any troopers around him. Nor was I 8 looking for any troopers around him. I was 9 concerned with Mr. Zellner sitting down because at 10 first I thought he was sick. Something was 11 happening right in front of me. He was going down. 12 I was unsure what it was until he stated everybody 13 down, everybody down. Then I knew I had a problem. 14 (Tr. 133-36.) 15 Q. Up to this point that he began dropping, 16 how long had your conversation with the plaintiff 17 lasted? 18 A. Twenty, thirty seconds. 19 Q. When he began dropping, what was your 20 reaction? 21 Did you think you had probable cause of any-- 22 for an arrest of any kind? 23 A. No . . . . 24 . . . . 25 Q. Did he say anything when he was sitting 26 down? 27 A. No. 28 I thought when he started going down, this had 29 never happened to me before, I thought I had 30 somebody sick on my--I thought I had a heart attack 31 on my hands. He started going down. Okay. Then 32 when he started yelling, everybody down, everybody 33 down, I knew I had what we call "passive 34 resistance." He was going to sit down and try to 35 block traffic and he was going to try to get the 36 twenty, thirty, forty other demonstrators to follow 37 his lead, and I knew I had a problem. I had women 38 and children. If they started squatting in front of 39 that pickup truck, and tribal members or 40 demonstrators started gathering on that pickup 41 truck-- - 11 - 1 . . . . 2 . . . I knew I had a problem. If that operator 3 attempted that left-hand turn, people would have 4 been hurt. 5 Q. How many times did the plaintiff yell 6 "everybody down"? 7 A. I believe, two times. Maybe three. 8 Q. Did you see anyone else sit down? 9 A. No. 10 Q. What did you do when the plaintiff sat down 11 and said "everybody down"? 12 A. I knew I had to get him. I had two 13 objectives at that point. Get him away from the 14 scene and get the trucks [sic] inside the driveway, 15 to defuse the situation. 16 Q. Did you say anything to the plaintiff when 17 he sat down? 18 A. I grabbed him underneath--I believe--his 19 right armpit with my left arm. I said get up. 20 Q. Did he get up? 21 A. No. 22 Q. What, if anything, was the crowd doing at 23 that point? 24 A. I heard the crowd behind me, yelling and 25 screaming. 26 . . . . 27 Q. . . . . What did you do at that point? 28 A. When Mr. Zellner wouldn't get up, I looked 29 up and I saw two or three troopers there and I said, 30 get him out of here, dis con, which is disorderly 31 conduct. 32 (Tr. 176-78.) 33 At his deposition some 10 months before trial, Major Weber 34 had been asked what Zellner had done that constituted disorderly - 12 - 1 conduct. Weber's answer had then been: "He sat down on a driveway 2 in a paved portion of the road, I don't know exactly where, for the 3 purposes of obstructing vehicle traffic, and I determined that was 4 disorderly conduct . . . ." (Tr. 144 (internal quotation marks 5 omitted).) 6 3. The Testimony of Other Troopers 7 Summerlin testified that after "someone came running down 8 the road wa[]ving their cell phone and stating that they had 9 received a court order" (Tr. 691), Zellner "was yelling at the 10 Major, pointing his finger[,] saying you should wait for the court 11 order, you should wait for the court order" (id. at 693-94). At the 12 time, Summerlin testified, Major Weber was trying, in a professional 13 and businesslike manner, to explain that the truck was entering 14 solely to refuel an on-site vehicle, and that the project was 15 shutting down. (See id. at 694.) 16 Q. After Major Weber explained why the truck 17 was attempting to enter and the plaintiff [was] 18 yelling at Major Weber and pointing at him, what 19 happened next? 20 A. At some point in time all I can remember is 21 that as I was looking out I heard someone say 22 everybody down, Mr. Zellner fell down to his knees 23 and folded his legs scissor fashion. 24 Q. Where were you in relation to this? 25 A. I was standing on his left side. 26 Q. What happened after the plaintiff dropped 27 to the ground and said everybody down? 28 A. I had turned to look off towards my left 29 and I could hear the Major say get up. 30 Q. Did the plaintiff get up when the major - 13 - 1 said that? 2 A. No, he left his hands, he had his legs 3 scissor fashion and his hands were on his knees and 4 his head was down. 5 Q. After the Major asked the plaintiff to get 6 up, what happened? 7 A. The major looked towards me and Trooper 8 Parker and said get him out of here dis con. 9 Q. Get him out of here dis con, what did you 10 understand that to mean? 11 A. That he was under arrest. 12 Q. What was he under arrest for at that time? 13 A. Disorderly conduct. 14 (Tr. 695.) 15 Trooper Kevin Drew testified that he was standing "right 16 next" to Zellner, when Zellner "all of a sudden shout[ed] . . . he 17 wanted everybody to sit down." (Id. at 665.) 18 Q. After he shouted for everybody to sit down, 19 what did he do? 20 A. He sat down and nobody else did. 21 Q. Where were you when this took place? 22 A. I was behind him, just maybe four to five 23 feet away. 24 Q. What did you do after he sat down? 25 A. After he sat down, I observed the Major 26 come over and talk to him about getting up and 27 moving and . . . Troopers Parker and Summerlin came 28 over too and were negotiating with him to move and 29 about letting the truck in. 30 (Id.) Drew's written reports of the incident did not state that 31 Zellner had shouted for others to sit down. (See id. at 682-83.) 32 Trooper Derrick Parker testified that as Major Weber was - 14 - 1 in the driveway telling people to "let the truck come through so it 2 could fuel up" (Tr. 630), Zellner, who was sipping coffee from a cup 3 in his hand (see id. at 646), "was standing right in front of Major 4 Weber and he was saying something back to Major Weber, Major Weber 5 was asking him to move from the driveway" (id. at 630-31). 6 Q. What happened after that if you remember? 7 A. Mr. Zellner said something, he just dropped 8 to the ground. 9 Q. When you say dropped to the ground, did 10 anything that you said cause him to drop to the 11 ground? 12 A. No. 13 Q. Did anybody hit him or was he in contact 14 with anybody when he dropped to the ground? 15 A. No, he just dropped to the ground and sat 16 down. 17 Q. Would you describe how he dropped to the 18 ground, did he go backwards, to the left or right, 19 straight down? 20 A. Straight down to the ground. 21 Q. Is there any way further that you could 22 describe how he went to the ground? 23 A. No other way, he just dropped straight down 24 and sat down on his butt. 25 (Id. at 631.) 26 Q. Sir, you said that Mr. Zellner went down on 27 his butt, correct? 28 A. Yes. 29 Q. He didn't go down on his knees, right? 30 A. No. 31 Q. And you were standing right behind him, you 32 would have seen that, right? - 15 - 1 A. Yes. 2 (Id. at 655-56.) 3 Q. Do you remember where Major Weber was? 4 A. Yes, he was in the driveway, the middle of 5 the driveway, talking to Mr. Zellner. 6 (Id. at 632.) 7 Parker, who was "standing right behind" Zellner (id. at 8 656), slightly to his right (see, e.g., id. at 631-32, PX 19A, 9 PX 19D), did not hear Zellner yell anything to the crowd: 10 Q. Now, when Mr. Zellner went down, you said 11 nobody said anything to him at that point, is that 12 correct-- 13 Did you say anything to him? 14 A. No. 15 Q. Did anybody else say anything to him? 16 A. No. 17 Q. Did you hear Mr. Zellner say anything? 18 A. I didn't hear him say anything . . . . 19 (Tr. 652.) 20 Trooper Michael Lewis testified that he saw Zellner and 21 Major Weber talking. He could not hear the conversation, but said 22 he saw Zellner sit down: 23 Q. After the truck began to attempt to enter 24 the driveway, and the people moved in front of it, 25 and Major Weber was talking, what happened next? 26 A. Around that time I observed the plaintiff 27 move into the center of the driveway, and then he 28 sat down after having a discussion with Major Weber, 29 which I could not hear, he sat down. 30 Q. At the time that he sat down, were any 31 troopers in contact with him at that time? - 16 - 1 A. No. 2 Q. Where specifically did he sit down; in the 3 road, the driveway or somewhere else? 4 A. Right in the middle of the driveway. 5 Q. After he sat down, what else did you 6 observe with regard to the plaintiff at that time? 7 A. I observed Troopers Parker and Summerlin 8 lift him and attempt to remove him from the scene. 9 (Tr. 743-44.) 10 Lewis, who did not testify that Zellner yelled anything to 11 the crowd, wrote a memorandum on the incident, which did not 12 indicate even that Zellner sat down. At no time did Lewis ever 13 report to anyone in writing that he saw Zellner sit down. (See id. 14 at 759-61.) 15 4. Testimony by Non-Troopers 16 Zellner denied that he had sat down at the scene of the 17 demonstration and denied that he had urged anyone else to do so. He 18 said that he had not seen the truck that was attempting to turn into 19 the property, and that he was not even aware that there was a 20 driveway. (See Tr. 392-93.) Asked to describe what his "voice 21 level" had been "at any time before being grabbed" (id. at 348), 22 Zellner testified: 23 A. My voice level was conversational and quiet 24 and respectful. 25 Q. And, sir, at the time that you were 26 grabbed, did you make or yell any statements to the 27 crowd? 28 A. No, I did not. 29 Q. Sir, at any point did you sit down? - 17 - 1 A. No, I did not. 2 (Id. at 348-49; see also id. at 380 ("I never did sit down"; "I 3 didn't sit down.").) Zellner testified that he did not at any point 4 yell to the crowd (see id. at 376) and never yelled "everybody down" 5 (id. at 381). 6 Reverend Davis, who stood no more than 10 feet away from 7 Zellner after she introduced him to Major Weber, testified that she 8 never heard Zellner raise his voice and never saw him attempt to sit 9 down: 10 Q. . . . . [T]ell us, please, at any point did 11 you make any observation of Mr. Zellner attempt to 12 try and prevent police from doing anything? 13 A. No, I did not observe that at all. 14 . . . . 15 Q. When, if at all, did you see Mr. Zellner 16 sit down? 17 A. I didn't see him sit down at all. 18 Q. At any point did you see him attempt to sit 19 down? 20 A. I did not see him try to sit down. 21 (Tr. 71.) 22 Q. And was there anything obscuring your view 23 of what you saw? 24 A. No. I saw him go down. 25 Q. And can you tell the jury, did you see-- 26 what if anything was it that made him go down? 27 A. Well, yes. I saw the troopers. I counted 28 4 troopers touching him. 29 Q. And at that time what was Mr. Zellner 30 doing? 31 A. Well, he had a cup of coffee in his hand, - 18 - 1 and so between the time that the troopers had hold 2 of him and he was drinking his coffee the last time 3 I had seen him, he wasn't doing anything. 4 Q. And at any point did you hear him say 5 anything, raise his voice or in any way shout 6 anything? 7 A. Oh, no, not at all. 8 (Tr. 58 (emphases added).) 9 Gordell Wright, a resident of the Shinnecock Reservation, 10 testified that he was just a few feet away from Zellner when he saw 11 two troopers grab Zellner's arms and throw him to the ground. (See 12 id. at 317-18.) When grabbed, Zellner was standing, doing 13 "[n]othing"; he was not seated. (Id. at 318.) Wright had not heard 14 Zellner say anything or yell anything to the crowd. (See id.) When 15 the troopers grabbed Zellner, they pushed him toward the ground and 16 he fell; Zellner did not resist arrest at all. (See id. at 328.) 17 Rebecca Genia, a resident of the Reservation who had been 18 at the demonstration site the entire day, testified that she did not 19 see Zellner (whom she had not previously met) sitting down and did 20 not hear him or anyone else urge everybody to sit down. She heard 21 a "ruckus" and saw Zellner on the ground. (Tr. 235.) She then saw 22 him being dragged past her, screaming about his arms (see id. at 23 237). 24 Q. At any time did you hear that individual 25 that you now know to be Robert Zellner say the words 26 "everybody down, everybody down"? 27 A. No. 28 Q. Did you ever hear those words on that day? 29 A. No. 30 . . . . - 19 - 1 Q. At any time when you were looking in th[e] 2 direction [of Zellner being dragged away], or 3 anytime before that, did you make any observation of 4 a man you now know to be Robert Zellner, Bob 5 Zellner, sitting down? 6 A. No. 7 (Tr. 237-38.) 8 Benjamin Haile, who had asked Zellner to come to the 9 demonstration site that morning, testified that he did not see the 10 incident involving Zellner but heard the scuffle. (See Tr. 259-60.) 11 At the time, Haile was in the driveway, some 10 feet away from the 12 road; the scuffle involving Zellner was behind him, farther into the 13 driveway. (See id. at 260.) 14 Q. At any point prior to hearing the scuffle 15 behind you, did you hear anyone say the words 16 "everybody down, everybody down"? 17 A. No. 18 Q. Anybody say that that day? 19 A. No. 20 (Id. at 262.) 21 Harriet Gumbs, a Shinnecock elder who was 79 at the time 22 of the demonstration, testified that she was standing next to 23 Zellner, close enough to touch him, when Zellner was grabbed by the 24 State troopers. (See id. at 305.) She testified that Zellner 25 neither sat down nor told anyone else to do so: 26 Q. At any point prior to that point, ma'am, 27 did you see Mr. Zellner sit down? 28 A. No, he did not. 29 Q. At any point during that day did you see 30 Mr. Zellner sit down-- 31 A. It was too cold to sit down. We were - 20 - 1 freezing out there. 2 (Tr. 304-05.) Asked what Zellner "was doing with his body" just 3 before he was grabbed, Gumbs testified that he was "standing," not 4 "sitting or anything else." (Id. at 306-07.) Nor did he yell 5 "everybody down": 6 Q. . . . . Prior to him being grabbed by the 7 troopers, did you hear him at any point say 8 "everybody down, everybody down"? 9 A. He never, ever said that. 10 Q. Did anybody ever say that there? 11 A. No one said it. 12 (Id. at 308.) 13 Gumbs testified that when the troopers grabbed Zellner, 14 they put his arms "behind his back, but they did not do it in a 15 gentle manner, they did it like they was trying to pull him apart, 16 take his arms off of him." (Id. at 305.) Then "[t]hey got him down 17 on the ground and they had his face almost buried in the ground. I 18 thought he was going to smother before they got up off him." (Id. 19 at 308.) 20 5. The Videotape and Photographs 21 The video camera did not record any part of Zellner's 22 interaction with Major Weber. It was located to the north of the 23 driveway and was pointed south at a short stretch of St. Andrew's 24 Road. The videotape shows sparse vehicular traffic on the road, 25 some pedestrian cross-traffic, and a congregation of people at the 26 west edge of the road, north of the driveway. The driveway itself-- 27 which still photographs show as no more than a somewhat beaten-down - 21 - 1 grass-and-dirt path leading through a field of brush and bushes 2 (see, e.g., PX 26C)--is not visible on the videotape. For some 10 3 minutes, according to the time-of-day display on the videotape, 4 Zellner is shown at the edge of the road talking to demonstrators; 5 a zoom shot during this period shows Zellner holding a coffee mug. 6 At 13:19:00, the videotape shows a pickup truck arriving, 7 signaling for a left turn into the Parrish Pond development. A 8 trooper goes into the road to the truck, which begins a left turn 9 but stops as people appear to congregate around it. At about the 10 same time Zellner walks away from the road and into another crowd of 11 people, away from the camera, moving closer to the driveway. The 12 videotape shows Zellner, partially obscured, bending forward from 13 the waist at 13:19:20, straightening up at 13:19:22, bending forward 14 again at 13:19:25, and straightening up again at 13:19:26. Zellner 15 then all but disappears into the crowd, and for most of the next 16 approximately four minutes, only his hat is visible on the tape. A 17 still photograph, PX 19A, which by all accounts depicts the scene 18 inside that crowd moments before Zellner began speaking with Major 19 Weber (see, e.g., Tr. 219, 317, 342, 648), shows Zellner (coffee mug 20 in hand) standing with Gumbs, Wright, and two other protestors, 21 surrounded by Summerlin, Parker, and two other (unidentified) 22 troopers. No one appears to be saying anything; Major Weber, his 23 side turned toward this group, is standing a few feet away from 24 Zellner. 25 At about 13:23 on the videotape, Zellner's hat disappears 26 from view, and he is not seen again on the tape for some 20-25 27 seconds. A still photograph, however, PX 19D, was taken in the - 22 - 1 interim. It shows Zellner tilted backward at about a 45-degree 2 angle, with Summerlin holding his left arm, Parker holding his right 3 arm, Drew with a hand on the back side of Zellner's jacket (see Tr. 4 678), and Major Weber leaning forward with his left arm 5 outstretched, his hand on Zellner's right shoulder (see, e.g., id. 6 at 404). The postures of Troopers Summerlin and Parker indicate 7 that they are pulling Zellner backwards. Major Weber testified that 8 PX 19D shows the troopers "escorting" Zellner away after he sat down 9 in the driveway. (Tr. 138, 187.) Zellner, in contrast, testified 10 that PX 19D shows "the exact moment when [he was] unexpectedly 11 pulled from behind" and taken to the ground. (Tr. 404.) Reverend 12 Davis similarly testified that, in PX 19D, "the[ troopers] were 13 pulling [Zellner] to the ground." (Tr. 68.) 14 At about 13:23:20, the videotape shows Zellner, upright 15 and walking, being brought out through the crowd by two troopers. 16 A subsequent still photo, PX 19C, shows Zellner prone, spread-eagle, 17 on the ground with Troopers Summerlin and Parker apparently cuffing 18 his hands behind his back, and Trooper Drew watching. 19 When Zellner was asked about the seven-second segment of 20 the videotape at 13:19:20-13:19:26, which showed him twice bending 21 forward at the waist, he testified that he had bent first to put his 22 coffee mug down in order to button his coat or tie its belt, and 23 then had bent again to retrieve the mug. (See Tr. 377-78.) Major 24 Weber, however, after having been shown that part of the videotape, 25 testified, "I'd like to call them practice runs" (id. at 118). 26 Q. I'm sorry, sir? 27 A. I like to call it a practice run. - 23 - 1 (Id.) Shown that segment again, Weber testified that he viewed 2 Zellner as practicing sitting down and showing the demonstrators how 3 to sit down: 4 Q. Sir, we're at 13:19. The truck is there; 5 correct? 6 A. Yes. 7 Q. Mr. Zellner is still standing there? 8 A. Yes, he is. There he is. 9 Q. When you say--we're just at 13:19, and that 10 would have been 21 or 22 seconds. You're saying 11 that was a dry run? 12 A. I believe after seeing this video that was 13 a practice run on how to engage in passive 14 resistance, sitting down. 15 Q. Sir, when he leaned forward as though to go 16 to whatever in [sic] front of him, you're saying 17 that that is the equivalent of sitting down? 18 A. I believe-- 19 Q. Sir? 20 A. --that is the equivalent of sitting down. 21 Q. Very well. 22 A. Instructing the demonstrators how to sit 23 down. 24 (Id. at 120.) 25 The relevant part of the videotape had no sound, and hence 26 provided no evidence that anyone had shouted "everybody down." 27 Neither the videotape nor any of the still photographs showed 28 Zellner sitting. 29 B. The Rule 50(a) Motions and the Instructions to the Jury 30 Following the conclusion of Zellner's case, defendants - 24 - 1 moved pursuant to Fed. R. Civ. P. 50(a) for judgment as a matter of 2 law, arguing (a) that Zellner had failed to present evidence that 3 was legally sufficient to support his claims, and (b) that, in any 4 event, defendants were entitled to qualified immunity. The district 5 court denied the motion. It stated, inter alia, that the matter of 6 qualified immunity needed to be briefed by both sides. (See Tr. 7 532.) And the court stated that there were factual issues to be 8 decided by the jury: 9 This case comes down to factual issues, either the 10 jury believes that the plaintiff was attacked for no 11 reason, kicked and whatever, or they believe that he 12 jumped down on the driveway to obstruct traffic. 13 That is what the issue is going to be. 14 (Id. at 621.) After the close of all the evidence, defendants 15 renewed their Rule 50(a) motion. The court again denied the motion, 16 stating "[t]here are factual issues that have to be determined by a 17 jury." (Id. at 767.) 18 During the charging conference, at which the court and the 19 parties discussed the instructions and special-verdict questions to 20 be given to the jury, defendants requested yet again that the court 21 decide their qualified immunity defense as a matter of law: 22 MS. LEAHEY [defendants' counsel]: Your Honor, 23 as to the qualified immunity issue, could you let me 24 know what your intentions are with respect to that. 25 THE COURT: Because of the factual issues, I 26 cannot make a determination until the jury makes a 27 determination. 28 MS. LEAHEY: Your Honor, I would take an 29 exception to that. 30 I would state that in the first instance 31 qualified immunity is a question of law for the 32 Court to decide-- - 25 - 1 THE COURT: It is if there are no factual 2 issues. If this occurred and the jury finds that it 3 occurred the way that the [plaintiff] say[s] it 4 occurred, there is no immunity. 5 (Tr. 801 (emphases added).) Defense counsel argued that, for the 6 court not to rule on the qualified immunity defense and not to give 7 the jury a "qualified immunity set of instructions," would be 8 "prejudicial for the defendants and not the law." (Id.) The court 9 disagreed: 10 THE COURT: It is the law, because there is a 11 factual dispute here, the factual dispute has to be 12 resolved before there can be a finding of whether or 13 not there is qualified immunity. 14 You can't do it on this record. You would not 15 get summary judgment had you had this record and 16 made this motion, because there are questions of 17 fact. 18 (Id. (emphasis added).) 19 Focusing chiefly on Zellner's claim of excessive force, 20 defendants asked the court to pose to the jury the question of 21 whether "the events surrounding plaintiff's arrest, particularly 22 grabbing him, throwing him to the ground, kicking him and twisting 23 his arm occur[red] substantially as plaintiff testified." (Id. at 24 789.) It was agreed that "as plaintiff testified" would be changed 25 to "[as] plaintiff contends," in order to encompass not just 26 Zellner's own testimony but the testimony of his witnesses as well. 27 (Id.) The court decided that it would pose these detailed factual 28 questions individually, "because if there is a verdict here, I have 29 to make a decision on qualified immunity, it's only with as much 30 information about that as I can get." (Id. at 788.) 31 Comparably detailed questions were not, however, requested - 26 - 1 as to Zellner's conduct relating to his claims of false arrest and 2 malicious prosecution. Defendants proposed that the jury be asked 3 "did the defendants have probable cause to believe that plaintiff 4 was committing disorderly conduct by obstructing vehicular or 5 pedestrian traffic by blocking the driveway." (Tr. 790.) They 6 argued that this question "encapsulates the factual conflict in this 7 case as to false arrest, did he or did he not cause obstruction on 8 the roadway, by blocking the driveway." (Id. at 791.) The proposed 9 question, however, was a compound question, and the court elected to 10 ask the jury simply whether defendants had probable cause to believe 11 that Zellner had committed the offense of disorderly conduct or 12 resisting arrest. Defendants did not propose any simple fact 13 questions, such as whether Zellner had blocked the driveway, or sat 14 down, or yelled "everybody down." 15 The court's instructions to the jury with respect to 16 Zellner's claims of false arrest and malicious prosecution described 17 the parties' positions, in part, as follows: 18 The plaintiff contends that his Constitutional 19 right[s] were violated when . . . . he was 20 unlawfully arrested by the defendants for the 21 violation of disorderly conduct and the misdemeanor 22 crime of resisting arrest[] . . . . [a]nd . . . 23 when he was maliciously prosecuted by the defendants 24 for the violation and the misdemeanor. . . . 25 The defendants contend that . . . . there was 26 probable cause to arrest the plaintiff on both 27 charges[] . . . . [a]nd . . . there was probable 28 cause to prosecute the plaintiff on both charges and 29 this was done without malice. 30 . . . . 31 . . . [T]he defendants contend that the 32 plaintiff initiated a confrontation with Major 33 Weber, dropped to the driveway, where he sat to - 27 - 1 obstruct entrance to the driveway by a construction 2 truck and he incited others to block the driveway. 3 When he was told he was under arrest, he resisted 4 arrest by causing his body to become limp and 5 flailing his arms and placing his arms under his 6 body when troopers attempted to handcuff him. 7 (Tr. 895-96 (emphases added).) 8 With respect to Zellner's claim of false arrest, the court 9 told the jury that "the critical question for you to decide is 10 whether the arrest of the plaintiff was lawful," and that "whether 11 the arrest was lawful centers on whether the arrest was made by the 12 defendants acting on probable cause to believe" that Zellner had 13 committed the offense of disorderly conduct or resisting arrest. 14 (Id. at 901.) The court explained, inter alia, that "[p]robable 15 cause exists when the facts and circumstances within the knowledge 16 of the police officers at the time the arrest was made were 17 sufficient to warrant a person of reasonable prudence to believe 18 that a violation or a crime had been committed by the person 19 arrested." (Id. at 902.) 20 The court read the provisions of the New York disorderly 21 conduct and resisting arrest statutes under which Zellner had been 22 charged. As to § 240.20(5), the court stated: 23 "A person is guilty of disorderly conduct when with 24 intent to cause public inconvenience, annoyance or 25 alarm or recklessly creating a risk thereof, he 26 obstructs vehicular or pedestrian traffic.["] To be 27 guilty of disorderly conduct, the perpetrator must 28 act with intent to cause public inconvenience, 29 annoyance or alarm or recklessly creating a risk 30 thereof.[] 31 Inconvenience means tampering with the 32 legitimate transaction of public business. 33 Annoyance means discomfort or vexation. Alarm means 34 sudden fear. - 28 - 1 (Tr. 904.) As to resisting arrest, the court stated that 2 [s]ection 205.30 of the New York Penal law, insofar 3 as it is applicable to this case, reads as follows: 4 "A person is guilty of resisting arrest when he 5 intentionally prevents or attempts to prevent a 6 police officer or a peace officer from effecting an 7 authorized arrest." 8 . . . . 9 The arrest at issue must have been made in 10 accordance with the law. Namely, that it was based 11 on probable cause. Also, resisting arrest does not 12 require that the person being arrested use force or 13 violence. It is enough if he engages in his conduct 14 with the intent of preventing the officer from 15 effecting the authorized arrest of himself. 16 Accordingly, on the issue of the alleged 17 Constitutional violation, making an unlawful arrest 18 for disorderly conduct or resisting arrest, if you 19 determine that there was no probable cause to arrest 20 plaintiff on either of those charges [and that 21 defendants' actions were a proximate cause of injury 22 to Zellner], your verdict will be in favor of the 23 plaintiff and against the defendants, as to the 24 Federal Section 1983 false arrest cause of action. 25 However, if you determine that . . . there was 26 probable cause to arrest plaintiff for either 27 disorderly conduct or resisting arrest, then the 28 arrest would be lawful and your verdict must be in 29 favor of the defendants with regard to the charge of 30 false arrest. 31 . . . . 32 Also, as I instructed you, the fact that both 33 charges against the plaintiff resulted in a 34 dismissal is not evidence that the defendants lacked 35 probable cause at the time of the arrest. 36 (Id. at 905-06.) 37 In instructing the jury with respect to the claim of 38 malicious prosecution, the court described the four elements of such 39 a claim, i.e., initiation of a proceeding, termination of the 40 proceeding in the plaintiff's favor, lack of probable cause for - 29 - 1 commencement or continuation of the proceeding, and actual malice on 2 the part of the defendants in commencing or continuing the 3 proceeding. (See Tr. 919-20.) The court instructed, inter alia, 4 that 5 [i]f probable cause existed for the police officer 6 to commence a criminal prosecution against the 7 plaintiff . . . , then the plaintiff cannot recover 8 against the defendant who initiated the criminal 9 proceeding. 10 (Id. at 922.) The court added: 11 I further instruct you that if you find that 12 the defendants did not act maliciously, your verdict 13 must be in favor of the defendants on the malicious 14 prosecution claim even though you find that they did 15 not have probable cause to believe the plaintiff 16 committed either disorderly conduct or the crime of 17 resisting arrest that was charged. Only if you find 18 that the plaintiff has proved both: 19 One, that the defendants did not have probable 20 cause to charge the plaintiff with either the 21 violation or the crime, and 22 Two, that the defendants acted with malice, 23 will your verdict be in favor of the plaintiff 24 against the defendants. 25 (Id. at 923-24.) 26 The court gave instructions on compensatory damages and 27 reminded the jury that "throughout the case you are considering each 28 defendant separately and your verdict will be reported separately as 29 to each defendant." (Tr. 926.) The court also informed the jury 30 that if it found that Zellner was entitled to recover and further 31 found that a defendant had caused him injury maliciously or wantonly 32 or oppressively and deserved to be punished, it had discretion to 33 award Zellner punitive damages. (See Tr. 928-29.) The court 34 explained that - 30 - 1 [a]n act or failure to act is maliciously done 2 if prompted or accompanied by ill will or spite or 3 grudge toward the injured person individually. An 4 act or failure to act is w[anton]ly done if done in 5 reckless or callous disregard of or indifferent to 6 the rights of the injured person. An act or a 7 failure to act is oppressively done if done in a way 8 or manner which injur[]es or damages or otherwise 9 violates the rights of another person with 10 unnecessary harshness or severity or by misuse or 11 abuse of authority or power or by taking advantage 12 of some weaknesses or misfortune of another person. 13 (Id. at 929.) The court stated, however, that the jury should 14 initially make a finding only as to whether punitive damages were 15 warranted, without attempting to determine an amount. (See id.) 16 C. The Jury's Verdict 17 The jury was given a special verdict sheet posing 10 18 questions, most with subparts, to be answered with respect to (a) 19 the merits of Zellner's claims against each defendant, (b) the 20 amount of compensatory damages, if any, that Zellner should receive 21 from each defendant, and (c) whether or not he should receive 22 punitive damages. As detailed below, the jury found in favor of 23 Zellner on his claims for false arrest and malicious prosecution, 24 awarding him compensatory damages in the amount of $40,000 against 25 each defendant, and found that Zellner was entitled to punitive 26 damages as well; the jury found against Zellner on his claim of 27 excessive force, although it credited his evidence that defendants 28 had grabbed him and twisted his arm. 29 The precise questions posed on the special verdict sheet, 30 and the jury's findings in response, were as follows: 31 Do you find by a preponderance of the evidence: - 31 - 1 1. That the events surrounding plaintiff's arrest, 2 particularly grabbing him, throwing him to the 3 ground, and then striking him, kicking him, and 4 twisting his arm occurred substantially as 5 plaintiff contends? 6 Grabbing him? Yes 7 Throwing him to the ground? No 8 Striking him? No 9 Kicking him? No 10 Twisting his arm? Yes 11 2. That defendants had probable cause to believe 12 that the plaintiff was committing the violation 13 of disorderly conduct or the crime of resisting 14 arrest? 15 Disorderly conduct? No 16 Resisting arrest? No 17 3. That the defendant's acts in falsely arresting 18 him were the proximate cause of damages 19 sustained by the plaintiff? 20 Defendant Weber: Yes 21 Defendant Summerlin: Yes 22 4. That Defendant Weber took actions 23 to initiate or continue the criminal 24 prosecution against the plaintiff? Yes 25 5. That the defendant intentionally committed acts 26 that violated the plaintiff's federal 27 constitutional right not to be maliciously 28 prosecuted? 29 Defendant Weber: Yes 30 Defendant Summerlin: Yes 31 6. That the defendant's acts in maliciously 32 prosecuting him were the proximate cause of 33 damages sustained by the plaintiff? 34 Defendant Weber: Yes 35 Defendant Summerlin: Yes 36 7. That the defendant intentionally used excessive 37 force against the plaintiff when - 32 - 1 Arresting him? 2 Defendant Weber: No 3 Defendant Summerlin: No 4 Handcuffing him? 5 Defendant Weber: No 6 Defendant Summerlin: No 7 Taking him to the police vehicle? 8 Defendant Weber: No 9 Defendant Summerlin: No 10 8. That the defendant's acts in using excessive 11 force were the proximate cause of damages 12 sustained by the plaintiff? 13 Defendant Weber: No 14 Defendant Summerlin: No 15 INSTRUCTIONS AS TO DAMAGES 16 If your verdict is in favor of both defendants 17 on all causes of action, do not answer the damages 18 questions below, cease deliberations, and the 19 foreperson should sign and date the verdict sheet 20 and advise the court by note that you are ready to 21 return to the courtroom to announce your verdict. 22 On the other hand, if you have found a verdict 23 in favor of the plaintiff on any of the causes of 24 action, please answer the appropriate damages 25 questions that follow. 26 Compensatory Damages 27 9. Please state the amount of damages, if any, you 28 award to the plaintiff for his physical 29 injuries and his pain and suffering from 30 February 25, 2000 to the present date against 31 each defendant. 32 Defendant Weber: $40,000 33 Defendant Summerlin: $40,000 34 Punitive Damages 35 You are to consider the subject of punitive 36 damages only with regard to a defendant or - 33 - 1 defendants you have found liable on any of the 2 causes of action. 3 10. Do you award punitive damages to the plaintiff 4 against the defendant? 5 Defendant Weber: Yes 6 Defendant Summerlin: Yes 7 (November 24, 2004 Verdict Sheet ("Special Verdict").) 8 In connection with the jury's finding that Zellner should 9 receive punitive damages, the trial continued for an additional 10 half-day of testimony with respect to each defendant's financial 11 condition. Following further deliberations, the jury assessed 12 punitive damages of $5,000 against Weber and $500 against Summerlin. 13 (See November 26, 2004 Verdict Sheet-2.) 14 Judgment was eventually entered reflecting the jury's 15 verdicts. 16 D. The Posttrial Motions 17 Following the jury's verdicts, defendants renewed their 18 motion for judgment as a matter of law, pursuant to Fed. R. Civ. P. 19 50(b), arguing principally (a) that the evidence was insufficient to 20 support the jury's findings in favor of Zellner on his claims of 21 false arrest and malicious prosecution and its award of punitive 22 damages, and (b) that the officers were protected by qualified 23 immunity. Defendants also moved in the alternative for a new trial 24 on the ground, inter alia, that the court should have allowed them 25 to present evidence at trial as to facts that would have given them 26 probable cause to arrest Zellner on other charges. 27 Zellner opposed defendants' motions and moved pursuant to - 34 - 1 Fed. R. Civ. P. 59(a) for a new trial on his excessive force claim. 2 In support of his motion, Zellner argued principally that the jury 3 should have been instructed that if it found in his favor on the 4 false arrest claim it must also find that the force used to effect 5 the arrest was excessive. 6 In an opinion dated September 6, 2005, reported at 399 7 F.Supp.2d 154, the district court granted defendants' motion for 8 judgment as a matter of law dismissing Zellner's false arrest and 9 malicious prosecution claims only on the ground of qualified 10 immunity; and it denied Zellner's motion for a new trial on his 11 excessive force claim. In rejecting defendants' challenge to the 12 sufficiency of the evidence on the issue of probable cause, the 13 court stated as follows: 14 Defendants argue that they had probable cause 15 to arrest Plaintiff based on the fact that he 16 intentionally blocked the truck as it was attempting 17 to enter the construction site, which Defendants 18 argue is incontrovertibly shown by the videotape, 19 and initiated a confrontation with Weber during this 20 tense standoff by urging Weber to hold off on taking 21 any action until the protective order arrived in a 22 manner that was "obstructive and distracting, in 23 view of the imminent crisis posed by the truck." 24 However, the video itself was not conclusive as to 25 what happened when the truck attempted to turn into 26 the site, and the testimony at trial was 27 contradictory, with Plaintiff and members of the 28 Shinnecock tribe testifying that Plaintiff did not 29 obstruct the path of the truck but merely engaged 30 Weber in conversation in an attempt to maintain the 31 status quo until the restraining order arrived. The 32 jury was free to consider all of the evidence and to 33 weigh the credibility of the witnesses. In deciding 34 in Plaintiff's favor on the false arrest claim, the 35 jury found Plaintiff's account of the events worthy 36 of more credence. This Court cannot now re-weigh 37 the conflicting evidence or draw its own conclusions 38 as to the credibility of the witnesses at trial, for 39 to do so would be to substitute the Court's judgment 40 for that of the jury, which is not permitted. Smith - 35 - 1 v. Lightning Bolt Prods., Inc., 861 F.2d 363, 367 2 (2d Cir.1988). Thus, the Court finds that there is 3 sufficient evidence to sustain the jury's finding 4 that Plaintiff's arrest was not based on probable 5 cause. 6 399 F.Supp.2d at 157-58 (emphases added). 7 In denying defendants' challenge to the sufficiency of the 8 evidence on Zellner's malicious prosecution claim, the court stated 9 as follows: 10 Defendants argue that Plaintiff failed to 11 demonstrate that the officers lacked probable cause 12 to initiate the prosecution and that they harbored 13 malice towards Plaintiff. As discussed above, there 14 was evidence adduced at trial to support the jury's 15 verdict that Defendants lacked probable cause to 16 arrest Plaintiff and there was no suggestion that 17 Defendants thereafter obtained further evidence 18 giving them probable cause to believe Plaintiff was 19 guilty of the crimes charged against him. . . . 20 With respect to malice, the Second Circuit has held 21 that where "a jury could find that probable cause 22 for the charges against the plaintiff[] was lacking 23 . . . that finding alone would support an inference 24 of malice." Ricciuti v. New York City Transit 25 Auth., 124 F.3d 123, 131 (2d Cir.1997). Thus, the 26 Court will not disturb the jury's finding that 27 Defendants acted without probable cause and with 28 malice in prosecuting Plaintiff. 29 399 F.Supp.2d at 158. In addition, the court also ruled, inter 30 alia, that defendants' challenge to the jury's award of punitive 31 damages was without merit, noting that "[p]unitive damages are 32 available in section 1983 cases where 'the defendant's conduct is 33 shown to be motivated by evil motive or intent, or when it involves 34 reckless or callous indifference to the federally protected rights 35 of others.'" Id. at 162 (quoting Smith v. Wade, 461 U.S. 30, 56 36 (1983)). The court found that the award of punitive damages here 37 was supported by the jury's findings and the evidence, and that the 38 amounts awarded were within the range found reasonable in similar - 36 - 1 cases. See 399 F.Supp.2d at 162-63. 2 As to defendants' entitlement to qualified immunity, the 3 court, after noting that it was required, on defendants' motion for 4 judgment as a matter of law, to view the evidence in the light most 5 favorable to Zellner, stated as follows: 6 The evidence presented at trial . . . established 7 the following events leading up to Plaintiff's 8 arrest: (1) there was a large crowd of demonstrators 9 at the construction site who had been there for 10 several hours; (2) the demonstrators were instructed 11 by the police to stay off of the road and the 12 driveway allowing ingress to and egress from the 13 site; (3) a construction truck arrived on the scene 14 and the driver indicated his intention to enter the 15 site through the driveway by turning on his blinker; 16 (4) the truck remained immobile in the road for 17 nearly five minutes, blocking traffic completely 18 from at least one direction; (5) while the truck was 19 stopped in the road, demonstrators, including 20 children, walked and ran around it; (6) Plaintiff 21 walked into the driveway and turned to face the road 22 where the truck was waiting; (7) Plaintiff engaged 23 Weber in conversation and urged Weber not to take 24 any action until a restraining order, which was 25 expected, arrived, to which Weber responded that the 26 road needed to remain clear; and (8) at some point 27 Plaintiff made a crouching or squatting motion 28 towards the ground. 29 Id. at 159 (emphasis added). "[C]onsider[ing] all of these events 30 in context in deciding whether it would have been clear to a 31 reasonable officer that there was no probable cause to arrest 32 Plaintiff for disorderly conduct," id., the court concluded as 33 follows: 34 It is apparent from the record that Defendants were 35 faced with a tense situation for the several minutes 36 when the construction truck was attempting to enter 37 a construction site flanked on all sides by 38 protestors and their children. It is further clear 39 that Plaintiff's actions in engaging Major Weber in 40 conversation at that point, thereby distracting his 41 attention from the situation, and in making some 42 sort of movement that could have been interpreted as - 37 - 1 an attempt to sit down in the path of the truck, 2 only exacerbated the situation. Thus, while 3 Defendants may have acted without justifiable cause 4 in arresting Plaintiff, the Court cannot say that 5 their "judgment was so flawed that no reasonable 6 officer would have made a similar choice." Lennon 7 v. Miller, 66 F.3d 416, 424-25 (2d Cir.1995); see 8 also Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 9 534, 116 L.Ed.2d 589 (1991) ("The qualified immunity 10 standard 'gives ample room for mistaken judgments' 11 by protecting 'all but the plainly incompetent or 12 those who knowingly violate the law.'") (quoting 13 Malley v. Briggs, 475 U.S. 335, 341, 343, 106 S.Ct. 14 1092, 89 L.Ed.2d 271 (1986)). Thus, the Court finds 15 that Defendants are entitled to qualified immunity 16 on the false arrest and malicious prosecution 17 charges. 18 399 F.Supp.2d at 159-60 (emphases added). 19 Zellner, in his Rule 59(a) motion for a new trial, argued 20 principally that the jury should have been instructed that if it 21 found in his favor on the false arrest claim, it must also find in 22 his favor on the excessive-force-during-arrest claim, because if the 23 arrest was unlawful no force whatever could be justified. For that 24 proposition, Zellner relied on Atkins v. New York City, 143 F.3d 100 25 (2d Cir. 1998). The district court denied this motion for three 26 reasons. First, Zellner had not requested such an instruction. 27 Second, the court concluded that Atkins was not intended to be so 28 read. Third, the court stated that defendants would in any event be 29 entitled to qualified immunity on the excessive force claim as well. 30 See 399 F.Supp.2d at 163-65. 31 A new final judgment was entered dismissing all of 32 Zellner's claims against Weber and Summerlin. This appeal followed. - 38 - 1 II. DISCUSSION 2 On appeal, Zellner contends principally that, in ruling 3 that defendants are entitled to judgment as a matter of law on the 4 basis of qualified immunity with respect to his false arrest and 5 malicious prosecution claims, the district court impermissibly made 6 findings of fact and ignored facts found by the jury. He also 7 contends that the court should have granted his motion for a new 8 trial with respect to his excessive force claim, on the theory that 9 the jury should have been instructed that if his arrest was 10 unauthorized, the use of any force by the officers was excessive as 11 a matter of law. 12 Defendants contend, inter alia, that the entry of judgment 13 as a matter of law in their favor should be upheld on the ground 14 that they had either actual or "arguable" probable cause to arrest 15 Zellner for disorderly conduct in violation of § 240.20(5) of the 16 New York Penal Law as charged, or to arrest him under subsections 17 (6) and (7) of that section or under N.Y. Penal Law § 195.05 18 (McKinney 1999) (see defendants' brief on appeal at 29-31). They 19 state that "the question here is whether the evidence establishes 20 that, despite the jury's conclusion that Defendants lacked probable 21 cause to arrest Zellner for disorderly conduct or resisting arrest, 22 it was nonetheless reasonable for Defendants to believe they had 23 probable cause to arrest Zellner for any charge." (Defendants' 24 brief on appeal at 29 (emphasis in original).) 25 As to the false arrest and malicious prosecution claims, 26 we conclude that, in light of the jury's findings and the principles - 39 - 1 (a) that factual disputes are to be resolved by the jury, and (b) 2 that on a motion for judgment as a matter of law the record must be 3 viewed in the light most favorable to the party opposing the motion, 4 the granting of judgment as a matter of law in favor of defendants 5 was error. As to the excessive force claim, we see no error in the 6 district court's denial of Zellner's motion for a new trial. 7 A. Judgment as a Matter of Law on the Basis of Qualified Immunity 8 1. Qualified Immunity 9 Qualified immunity shields government officials performing 10 discretionary functions "from liability for civil damages insofar as 11 their conduct does not violate clearly established statutory or 12 constitutional rights of which a reasonable person would have 13 known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see, e.g., 14 Mitchell v. Forsyth, 472 U.S. 511, 524 (1985); Coons v. Casabella, 15 284 F.3d 437, 440-41 (2d Cir. 2002) ("Coons"); Cerrone v. Brown, 246 16 F.3d 194, 199 (2d Cir. 2001) ("Cerrone"). Where the right at issue 17 in the circumstances confronting police officers--here, the right 18 not to be subjected to a warrantless arrest without probable cause-- 19 was clearly established but was violated, the officers will 20 nonetheless be entitled to qualified immunity "if . . . it was 21 objectively reasonable for them to believe their acts did not 22 violate those rights." Oliveira v. Mayer, 23 F.3d 642, 648 (2d Cir. 23 1994) ("Oliveira"), cert. denied, 513 U.S. 1076 (1995); see, e.g., 24 Anderson v. Creighton, 483 U.S. 635, 639-40 (1987). The qualified 25 immunity test is an objective one. "[I]f officers of reasonable 26 competence could disagree" as to whether probable cause existed, - 40 - 1 "immunity should be recognized." Malley v. Briggs, 475 U.S. 335, 2 341 (1986). But "if, on an objective basis, it is obvious that no 3 reasonably competent officer would have concluded that" probable 4 cause existed, "[d]efendants will not be immune . . . ." Id. 5 Whether a defendant officer's conduct was objectively 6 reasonable is a mixed question of law and fact. See, e.g., Kerman 7 v. City of New York, 374 F.3d 93, 109 (2d Cir. 2004) ("Kerman"); 8 Lennon v. Miller, 66 F.3d 416, 420-21 (2d Cir. 1995) ("Lennon"); 9 Oliveira, 23 F.3d at 649-50; Warren v. Dwyer, 906 F.2d 70, 76 (2d 10 Cir.) ("Warren"), cert. denied, 498 U.S. 967 (1990). The ultimate 11 question of whether it was objectively reasonable for the officer to 12 believe that his conduct did not violate a clearly established 13 right, i.e., whether officers of reasonable competence could 14 disagree as to the lawfulness of such conduct, is to be decided by 15 the court. However, "[a] contention that--notwithstanding a clear 16 delineation of the rights and duties of the respective parties at 17 the time of the acts complained of--it was objectively reasonable 18 for the official to believe that his acts did not violate those 19 rights 'has its principal focus on the particular facts of the 20 case.'" Kerman, 374 F.3d at 109 (quoting Hurlman v. Rice, 927 F.2d 21 74, 78-79 (2d Cir. 1991)); see, e.g., Oliveira, 23 F.3d at 649-50. 22 If there is no dispute as to the material historical 23 facts, the matter of whether the officer's conduct was objectively 24 reasonable is an issue of law to be determined by the court. See, 25 e.g., Lennon, 66 F.3d at 421; Robison v. Via, 821 F.2d 913, 921 (2d 26 Cir. 1987). "[I]f there is such a dispute," however, "the factual 27 questions must be resolved by the factfinder." Kerman, 374 F.3d at - 41 - 1 109; see, e.g., Oliveira, 23 F.3d at 649; Calamia v. City of New 2 York, 879 F.2d 1025, 1036 (2d Cir. 1989). 3 Once the jury has resolved any disputed facts that are 4 material to the qualified immunity issue, the ultimate determination 5 of whether the officer's conduct was objectively reasonable is to be 6 made by the court. See, e.g., Stephenson v. Doe, 332 F.3d 68, 81 7 (2d Cir. 2003) (after the district court receives "the jury['s] 8 . . . deci[sion as to] what the facts were that the officer faced or 9 perceived," the court then may "make the ultimate legal 10 determination of whether qualified immunity attaches on those facts" 11 (internal quotation marks omitted) (emphasis added)); Lennon, 66 12 F.3d at 421 (the ultimate question of entitlement to qualified 13 immunity is one of law for the court to decide "[o]nce disputed 14 factual issues are resolved" (internal quotation marks omitted)); 15 Warren, 906 F.2d at 76 ("If there are unresolved factual issues 16 which prevent an early disposition of the defense, the jury should 17 decide these issues . . . . The ultimate legal determination 18 whether . . . a reasonable police officer should have known he acted 19 unlawfully" should be made by the court "on the facts found" by the 20 jury.); accord id. at 76, 77 (Winter, J., dissenting) (Although "the 21 ultimate decision regarding the qualified immunity defense is for 22 the court," "the court [that is] ruling on the qualified immunity 23 issue must know what the facts were that the officer faced or 24 perceived, and the finding of those facts appears to be a matter for 25 the jury."). 26 Qualified immunity is an affirmative defense. See Gomez 27 v. Toledo, 446 U.S. 635, 640 (1980). - 42 - 1 [B]ecause qualified immunity is an affirmative 2 defense, it is incumbent upon the defendant to 3 plead, and adequately develop, a qualified immunity 4 defense during pretrial proceedings so that the 5 trial court can determine . . . which facts material 6 to the qualified immunity defense must be presented 7 to the jury to determine its applicability once the 8 case has gone to trial. 9 Blissett v. Coughlin, 66 F.3d 531, 538 (2d Cir. 1995) (emphasis 10 added). To the extent that a particular finding of fact is 11 essential to a determination by the court that the defendant is 12 entitled to qualified immunity, it is the responsibility of the 13 defendant to request that the jury be asked the pertinent question. 14 See, e.g., id. If the defendant does not make such a request, he is 15 not entitled to have the court, in lieu of the jury, make the needed 16 factual finding. See, e.g., Kerman, 374 F.3d at 120; see also 17 Warren, 906 F.2d at 76 ("the jury should decide these issues on 18 special interrogatories"). 19 2. Probable Cause and "Arguable" Probable Cause 20 Probable cause to arrest exists when the officers have 21 knowledge of, or reasonably trustworthy information as to, facts and 22 circumstances that are sufficient to warrant a person of reasonable 23 caution in the belief that an offense has been or is being committed 24 by the person to be arrested. See, e.g., Dunaway v. New York, 442 25 U.S. 200, 208 n.9 (1979); Wong Sun v. United States, 371 U.S. 471, 26 479 (1963); Brinegar v. United States, 338 U.S. 160, 175-76 (1949); 27 Carroll v. United States, 267 U.S. 132, 161-62 (1925); Lee v. - 43 - 1 Sandberg, 136 F.3d 94, 102 (2d Cir. 1997). Probable cause is to be 2 assessed on an objective basis. "Whether probable cause exists 3 depends upon the reasonable conclusion to be drawn from the facts 4 known to the arresting officer at the time of the arrest." 5 Devenpeck v. Alford, 543 U.S. 146, 152 (2004). "[A]n arresting 6 officer's state of mind (except for the facts that he knows) is 7 irrelevant to the existence of probable cause. See Whren v. United 8 States, 517 U.S. 806, 812-813 (1996) (reviewing cases); Arkansas v. 9 Sullivan, 532 U.S. 769 (2001) (per curiam)." Devenpeck, 543 U.S. at 10 153 (emphasis added). Thus, an officer's "subjective reason for 11 making the arrest need not be the criminal offense as to which the 12 known facts provide probable cause," id.; an arrest is not unlawful 13 so long as the officer has knowledge of, or reasonably trustworthy 14 information as to, facts and circumstances sufficient to provide 15 probable cause to believe that the person arrested has committed any 16 crime, see, e.g., id. at 155; Jaegly v. Couch, 439 F.3d 149, 154 (2d 17 Cir. 2006) ("[A] plaintiff is not entitled to damages under § 1983 18 for false arrest so long as the arrest itself was supported by 19 probable cause, regardless of whether probable cause supported any 20 individual charge identified by the arresting officer at the time of 21 arrest."). 22 The existence of probable cause need not be assessed on 23 the basis of the knowledge of a single officer. 24 [A]n arrest . . . is permissible where the actual 25 arresting or searching officer lacks the specific 26 information to form the basis for probable cause or 27 reasonable suspicion but sufficient information to 28 justify the arrest or search was known by other law 29 enforcement officials initiating or involved with 30 the investigation. - 44 - 1 United States v. Colon, 250 F.3d 130, 135 (2d Cir. 2001); see, e.g., 2 United States v. Hensley, 469 U.S. 221, 230-33 (1985). This 3 principle, known as the collective or imputed knowledge doctrine, 4 recognizes that, "in light of the complexity of modern police work, 5 the arresting officer cannot always be aware of every aspect of an 6 investigation; sometimes his authority to arrest a suspect is based 7 on facts known only to his superiors or associates." United States 8 v. Valez, 796 F.2d 24, 28 (2d Cir. 1986), cert. denied, 479 U.S. 9 1067 (1987); see, e.g., United States v. Colon, 250 F.3d at 135. 10 Where it has been conceded or established that the 11 officers arrested the plaintiff without a warrant and without 12 probable cause, the question raised by the qualified immunity 13 defense is whether it was objectively reasonable for the officers to 14 believe they did have probable cause. Referring to this standard as 15 "arguable" probable cause, we have stated that 16 [a]rguable probable cause exists when "a reasonable 17 police officer in the same circumstances and 18 possessing the same knowledge as the officer in 19 question could have reasonably believed that 20 probable cause existed in the light of well 21 established law." Lee v. Sandberg, 136 F.3d 94, 102 22 (2d Cir.1997) (internal quotation marks omitted). 23 Cerrone, 246 F.3d at 202-03 (emphasis in original); see also 24 Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) ("Arguable 25 probable cause exists 'if either (a) it was objectively reasonable 26 for the officer to believe that probable cause existed, or 27 (b) officers of reasonable competence could disagree on whether the 28 probable cause test was met.'" (quoting Golino v. City of New Haven, 29 950 F.2d 864, 870 (2d Cir. 1991))). 30 Although the tests for probable cause and arguable - 45 - 1 probable cause are thus not congruent, see, e.g., Anderson v. 2 Creighton, 483 U.S. at 640-41, the concept of probable cause is the 3 same in both inquiries. "Probable cause existed if 'at the moment 4 the arrest was made . . . the facts and circumstances within the[ 5 officers'] knowledge and of which they had reasonably trustworthy 6 information were sufficient to warrant a prudent man in believing' 7 that [the suspect] had violated" the law, Hunter v. Bryant, 502 U.S. 8 224, 228 (1991) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)) 9 (emphasis ours); and an officer sued under the Fourth Amendment for 10 false arrest is "entitled to immunity if a reasonable officer could 11 have believed that probable cause existed," Hunter, 502 U.S. at 228 12 (emphasis added). Accordingly, like the probable cause analysis, 13 the analysis of a qualified immunity defense to claims that official 14 actions were taken without probable cause "entails an inquiry into 15 the facts known to the officer at the time of the arrest," Coons, 16 284 F.3d at 441. "A court must evaluate the objective 17 reasonableness of the appellants' conduct 'in light of . . . the 18 information the . . . officers possessed.'" Cerrone, 246 F.3d at 19 202 (quoting Anderson v. Creighton, 483 U.S. at 641). 20 "'Arguable' probable cause" must "not be misunderstood to 21 mean 'almost' probable cause." Jenkins v. City of New York, 478 22 F.3d 76, 87 (2d Cir. 2007). 23 The essential inquiry in determining whether 24 qualified immunity is available to an officer 25 accused of false arrest is whether it was 26 objectively reasonable for the officer to conclude 27 that probable cause existed. See Anderson[ v. 28 Creighton], 483 U.S. at 644 . . . . There should be 29 no doubt that probable cause remains the relevant 30 standard. If officers of reasonable competence 31 would have to agree that the information possessed - 46 - 1 by the officer at the time of arrest did not add up 2 to probable cause, the fact that it came close does 3 not immunize the officer. 4 Jenkins v. City of New York, 478 F.3d at 87 (emphasis added); see 5 also Cerrone, 246 F.3d at 202-03 (arguable probable cause focuses on 6 the objectively reasonable belief of "a reasonable police officer in 7 the same circumstances and possessing the same knowledge as the 8 officer in question" (internal quotation marks omitted)). 9 3. The Standard for Judgment as a Matter of Law 10 In considering a motion for judgment as a matter of law, 11 the district court 12 must draw all reasonable inferences in favor of the 13 nonmoving party, and it may not make credibility 14 determinations or weigh the evidence. . . . 15 "Credibility determinations, the weighing of the 16 evidence, and the drawing of legitimate inferences 17 from the facts are jury functions, not those of a 18 judge." . . . Thus, although the court should 19 review the record as a whole, it must disregard all 20 evidence favorable to the moving party that the jury 21 is not required to believe. 22 Reeves v. Sanderson Plumbing, 530 U.S. 133, 150-51 (2000) (quoting 23 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)) (emphases 24 ours). Thus, a court may grant a motion for judgment as a matter of 25 law "only if it can conclude that, with credibility assessments made 26 against the moving party and all inferences drawn against the moving 27 party, a reasonable juror would have been compelled to accept the 28 view of the moving party." Piesco v. Koch, 12 F.3d 332, 343 (2d 29 Cir. 1993) (emphasis added). In ruling on a such motion, the court - 47 - 1 must bear in mind that the jury is free to believe part and 2 disbelieve part of any witness's testimony. See, e.g., Fiacco v. 3 City of Rensselaer, 783 F.2d 319, 325 (2d Cir. 1986), cert. denied, 4 480 U.S. 922 (1987); see also Haywood v. Koehler, 78 F.3d 101, 105 5 (2d Cir. 1996) (jurors are "free to accept bits of testimony from 6 several witnesses and to make reasonable inferences from whatever 7 testimony they credit[]"). 8 Incontrovertible evidence relied on by the moving party, 9 such as a relevant videotape whose accuracy is unchallenged, should 10 be credited by the court on such a motion if it so utterly 11 discredits the opposing party's version that no reasonable juror 12 could fail to believe the version advanced by the moving party. See 13 Scott v. Harris, 127 S. Ct. 1769, 1775-76 (2007) (so holding with 14 respect to proceedings on summary judgment); see generally Reeves, 15 530 U.S. at 150 ("the standard for granting summary judgment 16 'mirrors' the standard for judgment as a matter of law, such that 17 'the inquiry under each is the same'" (quoting Anderson v. Liberty 18 Lobby, Inc., 477 U.S. at 250-51)). 19 The court is not permitted to find as a fact a proposition 20 that is contrary to a finding made by the jury. See, e.g., Smith v. 21 Lightning Bolt Productions, Inc., 861 F.2d 363, 367 (2d Cir. 1988) 22 (court "cannot . . . substitute its judgment for that of the jury" 23 (internal quotation marks omitted)); see also Leblanc-Sternberg v. 24 Fletcher, 67 F.3d 412, 430 (2d Cir. 1995) ("In ruling on the motion 25 by [one codefendant] for judgment as a matter of law, . . . the 26 court was required to view the evidence in the light most favorable 27 to the [individual] plaintiffs"; "whatever its own view of the facts - 48 - 1 may have been, the court was not entitled to substitute its view for 2 adequately supported findings that were implicit in the jury's 3 verdict" against another defendant.), cert. denied, 518 U.S. 1017 4 (1996). Nor is the court permitted to make findings on factual 5 questions not submitted to the jury where those findings take the 6 evidence in the light most favorable to the moving party, rather 7 than the opposing party. See, e.g., Kerman, 374 F.3d at 120. 8 We review de novo the district court's decision on a 9 motion for judgment as a matter of law. In so doing, we apply the 10 same standard that is required of the district court. We "consider 11 the evidence in the light most favorable to the party against whom 12 the motion was made and . . . give that party the benefit of all 13 reasonable inferences that the jury might have drawn in his favor 14 from the evidence." Black v. Finantra Capital, Inc., 418 F.3d 203, 15 209 (2d Cir. 2005) (internal quotation marks omitted). We 16 "disregard all evidence favorable to the moving party that the jury 17 is not required to believe." Reeves, 530 U.S. at 151. 18 4. The Record in the Present Case 19 In the present case, defendants seek to defend the 20 district court's decision granting them qualified immunity as a 21 matter of law by asserting that they had actual or arguable probable 22 cause to arrest Zellner (a) for disorderly conduct in violation of 23 N.Y. Penal Law § 240.20(5), as charged, and (b) for other violations 24 not charged, to wit, disorderly conduct in violation of subsections 25 (6) and (7) of § 240.20 and obstructing the troopers' functioning in 26 violation of Penal Law § 195.05. We conclude, applying the above - 49 - 1 principles, that the record does not support qualified immunity on 2 any of these bases. 3 a. Disorderly Conduct As Charged, § 240.20(5) 4 In support of probable cause or arguable probable cause 5 for Zellner's arrest on the actual charge of violating § 240.20(5), 6 which involves obstruction of traffic, defendants state principally 7 that after the truck arrived, "Zellner walked into the crowd that 8 was in the direct path of the truck" (Defendants' brief on appeal at 9 33); that "Zellner deliberately started to sit down . . . and 10 shouted for everybody else to do so" (id. at 7); and that during his 11 conversation with Major Weber, Zellner crouched, squatted, or made 12 some other movement toward the ground (see id. at 35, 40) "that 13 reasonably could have been interpreted as an attempt to sit down in 14 the path of the truck" (id. at 35). These contentions impermissibly 15 disregard the evidence and the jury's verdict. 16 First, defendants' assertion that "Zellner walked into the 17 crowd that was in the direct path of the truck" (Defendants' brief 18 on appeal at 33) is unaccompanied by any supporting citation. 19 Moreover, if we draw all inferences in Zellner's favor, as we must, 20 the record does not support the contention that Zellner was actually 21 and immediately blocking the truck. Reverend Davis testified that 22 Zellner was not with the group that was standing in front of the 23 truck but rather was away from the road. (See Tr. 78.) And 24 although the videotape shows that Zellner walked into a group of - 50 - 1 people standing in and around the driveway, it is impossible to tell 2 whether he was in the truck's direct path at any time. 3 Second, although Major Weber and the troopers who 4 testified at trial stated that Zellner had sat down on the ground, 5 and some of the troopers testified that Zellner had yelled for 6 everyone else to sit as well, the jury's rejection of that testimony 7 is implicit in its finding that defendants failed to show that they 8 had probable cause for Zellner's arrest for disorderly conduct. The 9 evidence taken in the light most favorable to Zellner--as we are 10 required to view it, and the jury was at liberty to view it--was 11 that Zellner introduced himself to Major Weber, and the two shook 12 hands; that, in a quiet and respectful manner, Zellner said that he 13 understood that a restraining order requiring cessation of the 14 construction work was on the way; that he requested of Major Weber 15 that the troopers not take any further action until the restraining 16 order arrived; and that Zellner said he hoped that there would be 17 evenhanded treatment of everyone. Some 20-30 seconds into this 18 conversation, while literally still speaking to Major Weber, Zellner 19 was grabbed from behind, pulled backwards away from Weber, and 20 pulled and pushed to the ground. 21 Zellner and his witnesses testified that Zellner did not 22 sit down and that he did not attempt to sit down. Zellner did not 23 yell "everybody down" to the crowd even once, much less two or three 24 times as Major Weber testified. Zellner did not yell anything. The 25 protestors who testified at trial, some of whom were close enough to 26 touch Zellner before he was grabbed by the troopers, did not hear 27 him yell anything. Even Trooper Parker, standing right behind - 51 - 1 Zellner and slightly to his right, did not hear him yell anything. 2 Plainly the jury was not required to accept the defense version that 3 Zellner sat down on the ground or that he yelled for anyone else to 4 sit down. 5 Nor is there merit in defendants' assertion, invoking the 6 district court's findings, that "[d]uring []his conversation" with 7 Major Weber (Defendants' brief on appeal at 35), Zellner made a 8 "'crouching or squatting motion towards the ground'" or otherwise 9 "made 'some sort of movement that could have been interpreted as an 10 attempt to sit down in the path of the truck'" (id. at 40 (quoting 11 district court opinion, 399 F.Supp.2d at 159) (emphasis ours)). The 12 contention that defendants are entitled to qualified immunity on 13 this basis is flawed for a number of reasons. 14 First, no trooper could make the "interpret[ation]" 15 hypothesized above, unless Zellner actually made a crouching, 16 squatting, or other downward movement. Absent such a movement, 17 there was nothing for the troopers to interpret. Whether or not 18 Zellner made any such movement, however, was a question of fact. 19 "The court . . . found that some motion was made" (Defendants' brief 20 on appeal at 41), which obviously was a factual finding. But making 21 findings of fact and drawing factual inferences "'are jury 22 functions, not those of a judge.'" Reeves, 530 U.S. at 150 (quoting 23 Anderson v. Liberty Lobby, Inc., 477 U.S. at 255). 24 Second, as to any act that defendants contended Zellner 25 performed, and which they wished to argue provided either probable 26 cause or arguable probable cause for his arrest, it was incumbent on 27 defendants to have the jury decide whether Zellner in fact performed - 52 - 1 that act. Defendants did not request that the court include in the 2 special verdict sheet any fact-specific question as to the conduct 3 in which Zellner engaged, including whether he sat down on the 4 ground, or made a crouching or squatting motion, or made any 5 movement toward the ground. No such question having been put to the 6 jury (and answered favorably to defendants), no movement by Zellner 7 such as crouching or squatting was established as a fact. The court 8 was not entitled to provide the missing factual finding unless the 9 inference the court drew was one that the jury would have been 10 compelled to draw. 11 No inference that Zellner made such a movement was 12 compelled in this case. Defendants argue that the court's finding 13 that Zellner made a "'crouching or squatting motion'" or some other 14 such movement "'towards the ground'" was "appropriate" because "the 15 jury rejected Zellner's assertion that he was thrown to the ground." 16 (Defendants' brief on appeal at 40 (quoting district court opinion, 17 399 F.Supp.2d at 159).) This contention disregards the record, the 18 verdict, and the principles discussed in Part II.A.3. above. 19 Although the jury found that Zellner did not establish that he was 20 "throw[n] . . . to the ground" (Special Verdict Answer 1 (emphasis 21 added)), Zellner had testified that he was "face-to-face with Major 22 Weber" when he "was grabbed from behind, pulled backwards and down" 23 (Tr. 380) and that he "was grabbed from behind and pushed down" (id. 24 at 345). Reverend Davis testified to her observation that Zellner 25 was taken to the ground by "4 troopers touching him." (Id. at 58.) 26 The photograph introduced as PX 19D, in which Zellner's body is at 27 a 45-degree angle to the ground, shows four troopers touching - 53 - 1 Zellner: Summerlin and Parker having hold of his arms, with most of 2 their body mass behind Zellner; Drew with his hand on Zellner's back 3 (see Tr. 678); and Major Weber with his left arm fully extended, 4 leaning toward Zellner with his hand on Zellner's right shoulder. 5 Zellner and Reverend Davis testified that PX 19D shows the precise 6 point at which Zellner had been grabbed and was being taken to the 7 ground, and the positions and postures of all the persons shown in 8 that picture are entirely consistent with the testimony that Zellner 9 was grabbed from behind and was pulled and pushed to the ground. 10 The jury found "[t]hat the events surrounding plaintiff's arrest, 11 particularly grabbing him, . . . occurred substantially as plaintiff 12 contends" (Special Verdict Answer 1 (emphasis added)). Zellner's 13 being "grabbed from behind and pushed" and "pulled" down is not 14 inconsistent with the finding that he had not been subjected to the 15 more violent action of being "throw[n]" down. 16 Further, the evidence contradicts the proposition that 17 Zellner crouched, squatted, or otherwise moved downward in a way 18 that could reasonably have been interpreted as an attempt to sit 19 down. All of the troopers who testified at trial testified that 20 Zellner dropped to the ground and actually sat. Major Weber, who 21 was standing 6-8 inches from Zellner, testified that Zellner 22 "dropped to the ground" (Tr. 134) "in a split second" (id. at 135). 23 No trooper testified that Zellner, instead of actually sitting, had 24 made a crouching, squatting, or other motion that could have been 25 interpreted as an attempt to sit. Having discredited the troopers' 26 actual testimony that Zellner in fact sat, the jury was not required 27 to infer that Zellner had instead made some lesser movement that no - 54 - 1 trooper described. 2 Moreover, consistent with the absence of any testimony by 3 the troopers that Zellner had crouched, squatted, or made any other 4 such movement, Zellner's witnesses testified that Zellner was simply 5 standing there when he was grabbed by the troopers. Wright 6 testified that Zellner was "standing," doing "[n]othing." (Tr. 7 318.) Reverend Davis testified to her observation that, other than 8 drinking coffee, "he wasn't doing anything." (Id. at 58.) And 9 Gumbs, when asked what Zellner "was doing with his body" before he 10 was grabbed, testified that Zellner "was standing there," not 11 "sitting or anything else." (Id. at 307 (emphasis added).) 12 The factual proposition that Zellner had made some 13 movement that could reasonably have been interpreted as an attempt 14 to sit in the path of the truck is thus inconsistent with the 15 evidence and is a proposition that the jury, even if asked, would 16 not have been required to accept--especially in light of its 17 conclusions that the version of the facts presented by the troopers 18 was not credible and that defendants' treatment of Zellner warranted 19 the imposition of punitive damages. 20 In sum, as the jury was entitled to credit Zellner's 21 testimony and that of his witnesses that he had done nothing but 22 stand and talk to Major Weber when he was grabbed and pushed and 23 pulled down by the troopers, the jury was not compelled--and hence 24 the court was not permitted--to find that Zellner had made some 25 downward movement on his own. Without the fact of such a movement, 26 there was nothing for defendants to interpret in a way that gave 27 them even arguable probable cause. - 55 - 1 We note that it is not entirely clear that the district 2 court found that the "crouching or squatting motion" it attributed 3 to Zellner occurred during his conversation with Major Weber, for 4 the court stated that that movement was made "at some point," 399 5 F.Supp.2d at 159. And defendants seem to suggest that two such 6 motions are shown in a seven-second segment of the videotape before 7 Zellner and Major Weber met. (See, e.g., Defendants' brief on 8 appeal at 6 (Zellner "bent down twice . . . and then walked forward 9 to talk to Major Weber").) There are two principal problems with 10 such an interpretation. First, that segment of the videotape shows 11 Zellner bending forward (to put his coffee mug down briefly while he 12 closed his coat, Zellner testified), not making a squatting or a 13 crouching motion. Second, even if bending forward could reasonably 14 be considered a squatting or a crouching motion, there is no 15 evidence in the record that any trooper, at the time of Zellner's 16 arrest, was aware of that motion. The trooper who had been 17 instructed by Major Weber to activate the video camera did not 18 testify at trial; there is thus no evidence that the camera was 19 manned and that the events it captured on tape were seen by that 20 trooper contemporaneously. Nor did any of the troopers who 21 testified at trial claim to have seen Zellner's bending movement. 22 Although Major Weber testified at trial that he interpreted 23 Zellner's bending forward as practicing sitting down and instructing 24 the crowd on how to sit down (see Tr. 118-20), Major Weber plainly 25 did not see that movement when it occurred. Zellner's bending 26 motion occurred at 13:19:20 to 13:19:26 on the videotape, which was 27 several minutes before Zellner and Major Weber met. Major Weber - 56 - 1 testified that he first saw Zellner when the two were just five feet 2 apart, and their conversation ensued immediately. (See id. at 172.) 3 Major Weber's first inkling that Zellner had ever bent down came 4 upon his viewing the videotape at trial. (See Tr. 120 ("I believe 5 after seeing this video that was a practice run . . . .") (emphasis 6 added).) As discussed in Part II.A.2. above, however, the existence 7 of both probable cause and arguable probable cause must be assessed 8 on the basis of "the facts known to the officer[s] at the time of 9 the arrest," Coons, 284 F.3d at 441; see, e.g., Hunter, 502 U.S. at 10 228; Anderson v. Creighton, 483 U.S. at 641; Cerrone, 246 F.3d at 11 202. Zellner's action in bending to put his coffee mug down and 12 then to pick it up, which no trooper claimed to have seen, provided 13 no basis for a finding of either probable cause or arguable probable 14 cause. 15 b. Disorderly Conduct Under §§ 240.20(6) and (7) 16 Defendants' contention that they had probable cause or 17 arguable probable cause to arrest Zellner for violating two 18 uncharged subsections of New York's disorderly conduct statute fares 19 no better. Those subsections provide that "[a] person is guilty of 20 disorderly conduct when, with intent to cause public inconvenience, 21 annoyance or alarm, or recklessly creating a risk thereof," 22 6. He congregates with other persons in a 23 public place and refuses to comply with a lawful 24 order of the police to disperse; or 25 7. He creates a hazardous or physically 26 offensive condition by any act which serves no 27 legitimate purpose. 28 N.Y. Penal Law §§ 240.20(6), (7) (emphases added). - 57 - 1 As to subsection (6), defendants do not cite to any 2 evidence in the record to show that Zellner was given any order 3 within the scope of § 240.20(6). Zellner testified that he was not 4 ordered to do anything. Reverend Davis, who was standing no more 5 than 10 feet away from Zellner and Major Weber while they were 6 conversing, testified that she did not hear any of the troopers 7 given Zellner an order. Major Weber did not testify that he or any 8 other trooper gave Zellner an order, and the other troopers did not 9 testify that they gave Zellner any order. The record does not 10 support the contention that there was probable cause--or that any 11 reasonably competent trooper could have concluded that there was 12 probable cause--to arrest Zellner for violating subsection (6). 13 As to subsection (7)--"creat[ing] a hazardous . . . 14 condition by any act which serves no legitimate purpose"-- 15 defendants' probable cause and arguable probable cause contentions 16 are doubly flawed. First, defendants point to no evidence to 17 support a reasonable belief that Zellner himself created any 18 "hazardous condition." They assert in their brief on appeal that 19 after the pickup truck arrived at the demonstration site and began 20 to make a left turn into the driveway, "Zellner walked into the 21 crowd that was in the direct path of the truck" (Defendants' brief 22 on appeal at 33). However, as discussed in the preceding section, 23 that characterization of Zellner's actions is contradicted by the 24 testimony of Reverend Davis and by the videotape showing Zellner 25 moving away from the road. 26 Second, we cannot say, based on the record before us, that 27 a reasonable officer could have believed that Zellner's conversation - 58 - 1 with Major Weber "serve[d] no legitimate purpose." We must accept 2 as true Zellner's testimony that he was quietly and respectfully 3 conveying information to the officer in charge as to the imminent 4 arrival of a court injunction to halt the continuation of 5 construction and was asking for patient and evenhanded treatment in 6 the interim. The initiation of such a 20-or 30-second conversation 7 by the co-chair of the Town's Anti-Bias Task Force plainly has a 8 legitimate purpose, and no reasonably competent officer could have 9 concluded otherwise. 10 c. Interference With a Governmental Function, § 195.05 11 Section 195.05 of the Penal law, invoked by defendants in 12 their posttrial motion and on this appeal, provides in part that 13 [a] person is guilty of obstructing governmental 14 administration when he intentionally obstructs, 15 impairs or perverts the administration of law or 16 other governmental function or prevents or attempts 17 to prevent a public servant from performing an 18 official function, by means of . . . interference 19 . . . . 20 N.Y. Penal Law § 195.05. Defendants suggest that they would have 21 had probable cause or arguable probable cause to arrest Zellner 22 under this section for "intentionally obstruct[ing], impair[ing] or 23 perverting the State Troopers' ability to manage the situation." 24 (Defendants' brief on appeal at 36-37 (internal quotation marks 25 omitted).) They argue that 26 even if Zellner did not make a movement that 27 reasonably could have been interpreted as an attempt 28 to sit down, it would not have been unreasonable for 29 an officer to believe that he had probable cause to 30 arrest Zellner based on: (1) the increasingly 31 dangerous situation with a crowd of people causing a 32 truck to stop on a two-lane public road and children - 59 - 1 standing, walking, and running near the truck and 2 the road; (2) Zellner's apparent influence on the 3 crowd; and (3) Zellner's interference with Major 4 Weber's ability to control the situation by engaging 5 Major Weber at the moment he was trying to diffuse 6 [sic] the situation, standing in a way that forced 7 Major Weber to turn his back on the road, and urging 8 Major Weber not to take any action. 9 (Defendants' brief on appeal at 37.) The record does not include 10 sufficient evidence to support these assertions. 11 First, as noted above, the record does not establish that 12 Zellner himself was in the truck's direct path. No matter how tense 13 that situation, defendants were not entitled to arrest Zellner 14 unless there was probable cause to believe that Zellner had broken 15 the law. Second, there was no evidence at trial as to Zellner's 16 influence--or apparent influence--on the crowd. Major Weber 17 testified that he did not recognize Zellner as one of the protestors 18 (see Tr. 172); and there was no evidence in the record that any of 19 the troopers had knowledge or information sufficient to give them a 20 reasonable belief that Zellner had influence over the protestors. 21 Third, there was no evidence that Zellner's conversation with Major 22 Weber--lasting 20-30 seconds by Major Weber's own account-- 23 interfered with the police function in any way. Major Weber 24 indicated that he had some 20 troopers on the scene (see Tr. 96); 25 Weber himself was giving orders to a captain who was marshaling the 26 troopers to deal with the truck, and the captain "proceeded to try 27 to get the truck[] in." (Id. at 134.) Reverend Davis testified 28 that when the crowd around the truck was ordered to disperse, it did 29 so. (See Tr. 80.) In the meantime, Major Weber embarked on a 30 thorough explanation to Zellner as to the builders' desire to "leave - 60 - 1 the scene to go to other projects for the next thirty days," and 2 their "need[ for] some of their equipment," for "construction 3 projects," and that the purpose of the incoming truck was "to refuel 4 equipment so they could leave" (id. at 133-34), an explanation whose 5 expansiveness suggests that the troopers did not have a reasonable 6 belief that Zellner was interfering with the performance of their 7 duties. 8 On the existing record, it would not be objectively 9 reasonable for any reasonably competent officer to believe that the 10 initiation by the co-chair of the Town's Anti-Bias Task Force of a 11 20- or 30-second conversation with the major in charge of a highly 12 structured team of some 20 troopers, respectfully informing the 13 major of the imminent arrival of an injunction and asking for 14 patience and evenhanded treatment until its arrival, constitutes an 15 obstruction of governmental administration. 16 B. Zellner's Rule 59 Motion for a New Trial 17 Zellner contends that the district court erred in denying 18 his motion for a new trial on his excessive force claim. In that 19 motion, Zellner argued, citing Atkins v. New York City, 143 F.3d 20 100, that the jury should have been instructed that if it found he 21 had been arrested without probable cause, it must find that any 22 force used by defendants in the course of that arrest was excessive 23 and thus must return a verdict in his favor on the excessive force 24 claim. The district court denied the motion on the principal 25 grounds that Zellner had not requested such an instruction and that 26 Atkins was not intended to stand for that proposition. We agree - 61 - 1 with these rulings. 2 Zellner's Initial Request for Jury Instructions, filed 3 November 11, 2004, did not request such an instruction, and we have 4 not seen any indication in the record that Zellner filed a 5 subsequent request. Although Zellner asserts on appeal that he "had 6 made known his views regarding Atkins" (Zellner's brief on appeal at 7 40 n.7), he cites only a letter from his attorney and a statement at 8 the charging conference. The letter, however, cites Atkins only as 9 supporting Zellner's "opposition to Defendants' 50(a) Motion, made 10 during trial on November 18, 2004." (Letter from Zellner's counsel 11 to the court dated November 19, 2004.) At the cited pages of the 12 charging conference, Zellner's counsel stated, somewhat cryptically, 13 that "[t]he issue there, Judge, is whether or not, if indeed there 14 was or was not probable cause, any force was reasonable or 15 unreasonable." (Tr. 544.) Counsel then proceeded to state that, 16 "[i]f indeed there was no basis for the arrest, and if indeed the 17 jury finds that there was no probable cause for the arrest, any form 18 of force would be unauthorized (id. at 545). However, we do not see 19 anywhere in the colloquy a request that the jury be so instructed or 20 any citation to Atkins. 21 Further, Atkins does not stand for the proposition that 22 Zellner attributes to it. In Atkins, the jury found both that the 23 plaintiff had been arrested without probable cause and that the 24 officers had used excessive force in the arrest; however, the jury 25 awarded only nominal damages despite undisputed evidence of serious 26 injury. We ruled that where the jury has found a constitutional 27 violation and there is no genuine dispute that the violation - 62 - 1 resulted in some injury to the plaintiff, the plaintiff is entitled 2 as a matter of law to an award of compensatory damages. See, e.g., 3 Kerman, 374 F.3d at 124 (describing Atkins). Although there is 4 language in the Atkins opinion to the effect that, given the absence 5 of probable cause there was never a time when the use of force was 6 lawful, see Atkins, 143 F.3d at 103, the fact is that the jury in 7 Atkins had found that excessive force was used, and we have ruled 8 that the opinion does not stand for the proposition that in the 9 absence of probable cause for an arrest, any force that was used in 10 making the arrests was excessive, see Papineau v. Parmley, 465 F.3d 11 46, 62 (2d Cir. 2006). 12 Accordingly, the district court properly denied Zellner's 13 motion for a new trial on his excessive force claim. 14 CONCLUSION 15 We have considered all of the parties' arguments in 16 support of their respective positions on this appeal and, except for 17 concluding that the district court erred in granting judgment as a 18 matter of law in favor of defendants on the basis of qualified 19 immunity, we have found them to be without merit. For the reasons 20 stated above, we affirm so much of the judgment as dismissed 21 Zellner's claim alleging the use of excessive force. We reverse so 22 much of the judgment as dismissed his § 1983 claims against Major 23 Weber and Trooper Summerlin for false arrest and malicious 24 prosecution, and we remand for entry of an amended judgment 25 reinstating the jury's verdict with respect to those claims, and for - 63 - 1 such further proceedings as may be appropriate. 2 Zellner is also entitled to recover costs, including a 3 reasonable attorney's fee, see 42 U.S.C. § 1988, in connection with 4 the portion of this appeal as to which he is the prevailing party, 5 see, e.g., Cohen v. West Haven Board of Police Commissioners, 638 6 F.2d 496, 506 (2d Cir. 1980); the amount is to be determined by the 7 district court. - 64 -