Tardif v. City of New York

19-1360
Tardif v. City of New York

United States Court of Appeals
for the Second Circuit
_____________________________________

August Term 2019

(Argued: April 13, 2020 Decided: March 18, 2021)

No. 19-1360
_____________________________________

MARY M. TARDIF,

Plaintiff-Appellant,

— v. —

CITY OF NEW YORK, SERGEANT THOMAS MCMANUS, IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY,

Defendants-Appellees,

NEW YORK CITY POLICE DEPARTMENT, DEPUTY COMMISSIONER JOHN O’CONNELL,
DEPUTY INSPECTOR DANIEL MULLIGAN, DEPUTY INSPECTOR EDWARD WINSKI,
POLICE OFFICER JAMES MCNAMARA, POLICE OFFICER ALENA AMINOVA, POLICE
OFFICER KENDAL CREER, POLICE OFFICER MARSHA RUMBLE, POLICE OFFICER FELIX
SCHMIDT, JOHN DOE, NYPD OFFICERS #1-13, JOHN DOE, NYPD OFFICERS #1-11,
JOHN DOE, NYPD OFFICERS #1-9, JOHN DOE, NYPD OFFICER #11,

Defendants. *
_____________________________________

* The Clerk of Court is respectfully directed to amend the caption as set forth above.
Before: LIVINGSTON, Chief Judge, PARKER and BIANCO, Circuit Judges.

Following confrontations with New York City police officers during Occupy
Wall Street demonstrations at Union Square Park in the spring of 2012, Mary M.
Tardif brought suit against the City of New York, the New York City Police
Department, and various officers and officials. As relevant on appeal, Tardif
alleged that (1) the City violated the Americans With Disabilities Act of 1990, 42
U.S.C. § 12101 et seq., in failing to reasonably accommodate her epilepsy by timely
administering medication during her pre-arraignment detention following her
arrest, and that (2) Sergeants Giovanni Mattera and Thomas McManus committed
assault and battery under New York law when, during separate demonstrations,
each officer used force against Tardif. The United States District Court for the
Southern District of New York (Wood, J.) granted summary judgment to the City
on Tardif’s ADA claim and, following a six-day trial, a jury returned a verdict in
favor of the City and the individual officers on all the remaining claims. We
conclude that the district court properly granted summary judgment on the ADA
claim because there was no evidence demonstrating the City delayed
administering medication “by reason of” Tardif’s disability, as required under the
statute. With respect to the state law assault and battery claims, we hold that the
district court correctly determined, contrary to Tardif’s contention, that a
justification instruction was warranted on those claims because New York law
permits a police officer, even in a non-arrest situation, to use an objectively
reasonable degree of force in the performance of a public duty, including crowd
control. However, we conclude that the district court, in providing that
justification charge, erroneously instructed the jury that it could consider an
officer’s subjective intent, which is contrary to New York’s objective
reasonableness inquiry. We further conclude that, although the error was
prejudicial as it relates to the assault and battery claims involving Sergeant Mattera
and warrants a new trial, the error was harmless as to the claims against Sergeant
McManus given that his subjective good faith was never raised, or even at issue,
during the trial.

Accordingly, we AFFIRM the judgment in part, VACATE in part, and
REMAND the case for further proceedings consistent with this opinion.
 STEFAN H. KRIEGER (Gabriella MP.
Klein, Lindsay A. Wasserman, James P.
Stevens, Law Students, on the brief),
Hofstra Law Clinic, Maurice A. Deane
School of Law at Hofstra University,
Hempstead, NY; Gideon Orion Oliver,
New York, NY, on the brief, for Plaintiff-
Appellant.

JONATHAN A. POPOLOW, Assistant
Corporation Counsel (Richard P.
Dearing, Aaron M. Bloom, on the brief),
for James E. Johnson, Corporation
Counsel for the City of New York, New
York, NY, for Defendants-Appellees.

JOSEPH F. BIANCO, Circuit Judge:

Following confrontations with New York City police officers during Occupy

Wall Street demonstrations at Union Square Park in the spring of 2012, Mary M.

Tardif brought suit against the City of New York (“the City”), the New York City

Police Department (“NYPD”), and various officers and officials. As relevant on

appeal, Tardif alleged that (1) the City violated the Americans With Disabilities

Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., in failing to reasonably

accommodate her epilepsy by timely administering medication during her pre-

arraignment detention following her arrest, and that (2) Sergeant Giovanni

Mattera (“Sergeant Mattera”) and Sergeant Thomas McManus (“Sergeant

McManus”) committed assault and battery under New York law when, during
separate demonstrations, each officer used force against Tardif. The United States

District Court for the Southern District of New York (Wood, J.) granted summary

judgment to the City on Tardif’s ADA claim and, following a six-day trial, a jury

returned a verdict in favor of the City and the individual officers on all the

remaining claims.

We conclude that the district court properly granted summary judgment on

the ADA claim because there was no evidence demonstrating the City delayed

administering medication “by reason of” Tardif’s disability, as required under the

statute. With respect to the state law assault and battery claims, we hold that the

district court correctly determined, contrary to Tardif’s contention, that a

justification instruction was warranted on those claims because New York law

permits a police officer, even in a non-arrest situation, to use an objectively

reasonable degree of force in the performance of a public duty, including crowd

control. However, we conclude that the district court, in providing that

justification charge, erroneously instructed the jury that it could consider an

officer’s subjective intent, which is contrary to New York’s objective

reasonableness inquiry. We further conclude that, although the error was

prejudicial as it relates to the assault and battery claims involving Sergeant Mattera

2
and warrants a new trial, the error was harmless as to the claims against Sergeant

McManus given that his subjective good faith was never raised, or even at issue,

during the trial. Accordingly, we affirm the judgment in part, vacate in part, and

remand the case for further proceedings consistent with this opinion.

BACKGROUND

I. The March 17, 2012 Arrest and Epileptic Seizure 1

In September 2011, protestors took to the streets of New York City’s

Financial District in a demonstration against rising economic inequality in

America. Those protesting as part of Occupy Wall Street, as the movement became

known, encamped in Zuccotti Park in Lower Manhattan until NYPD officers

cleared the site in November 2011. On March 17, 2012, protestors returned to

Zuccotti Park to commemorate the six-month anniversary of the Occupy Wall

Street movement. In the early afternoon, Tardif and approximately thirty other

protestors were participating in call-and-response chants on the north sidewalk of

Zuccotti Park along Liberty Street. Speaking over a bullhorn, an NYPD official

1Because Tardif’s ADA claim stemming from her March 17, 2012 arrest was dismissed at
summary judgment, we must “accept as true the facts that were sworn to or undisputed,”
Green v. Town of East Haven, 952 F.3d 394, 407 (2d Cir. 2020), “examining the evidence in
the light most favorable to, and drawing all inferences in favor of” Tardif, Williams v.
Annucci, 895 F.3d 180, 186 (2d Cir. 2018) (internal quotation marks omitted).
3
ordered the crowd to clear the sidewalk because it was blocking pedestrian traffic.

In response, Tardif and other protestors did not move but began jumping, yelling,

and dancing in place. After additional orders to clear the sidewalk were ignored,

police officers arrested multiple protestors, including Tardif. 2

Following her arrest, Tardif was transported to a local precinct at around

3:30 p.m., where she was searched, processed, and placed in a holding cell. During

her processing, Tardif informed Officer Victor Lara (“Officer Lara”) that she had

epilepsy and that her medication (Lamictal) was among the over 100 medical

supplies in her backpack, which she carried as a volunteer “street medic” during

the protests. App’x at 451. Officer Lara told Tardif that all of her personal items

would need to be inventoried unless Tardif had someone pick up her belongings.

Tardif agreed to have a friend collect her possessions and signed a form

authorizing her friend to collect “all of her belongings,” id. at 378, but informed

Officer Lara that her friend was only authorized to collect her backpack and that

her epilepsy medication should remain with her at the precinct. Her epilepsy

medication was located in a small bag inside her backpack. At around 8:30 p.m.,

Tardif’s friend arrived at the precinct to collect her belongings.

2Tardif was later charged and pleaded guilty to disorderly conduct in violation of New
York Penal Law § 240.20.
4
 After learning of Tardif’s medical condition during processing, Officer Lara

informed Tardif that she would be taken to the 20th Precinct, a special medical

precinct where her medicine could be administered. Following NYPD procedures,

Officer Lara filled out a medical treatment form used for detainees with medical

needs, noting that Tardif had self-administered her epilepsy medication prior to

her arrest. Officer Lara also assured Tardif that her medication would follow her

to the 20th Precinct.

Tardif, who had a history of epileptic seizures, maintained a schedule where

she took Lamictal at 10:00 a.m. and 10:00 p.m. daily. Tardif asserts that, at around

5:00 p.m., she told an unidentified officer that she needed to take her medication

at 10:00 p.m., who responded, “Yeah, sure.” Id. at 456. Tardif further alleges that,

from 7:00 p.m. to 10:00 p.m., she repeatedly informed two unidentified male

officers that she needed to take her medication, but they did not respond to her

repeated requests for the medication.

At around 11:00 p.m., Tardif and other detainees were transferred to

Manhattan Central Booking where an emergency medical technician (“EMT”)

determined whether the detainees had medical conditions requiring special

attention. Tardif told an EMT about her epileptic condition, which, under NYPD

5
policy, required her to be medically cleared by a health professional before

arraignment.

Then, at around 1:30 a.m., on what was then March 18, 2012, Officer Lara

transported Tardif to Bellevue Hospital for medical clearance due to her history of

epileptic seizures and use of epilepsy medication. After Officer Lara informed

medical staff that Tardif required epilepsy medication, Tardif’s attending

physician provided her with a generic version of Lamictal (although her

prescription was for Lamictal XR) and documented in her medical records that

Tardif reported “no physical or medical complaints.” Id. at 142. After being

cleared medically, Tardif was ultimately transported by Officer Lara to the 20th

Precinct around 4:30 a.m.

Officer Cystallee Otero (“Officer Otero”), the cell attendant that morning,

was assigned to monitor Tardif and five other female detainees with medical

needs. At around 7:00 a.m., after Officer Otero introduced herself, Tardif informed

Officer Otero that she had epilepsy and needed her medication. Officer Otero

responded that “she would speak to a supervisor to ensure that [Tardif] got [her]

medication.” Id. at 460. Officer Otero left and returned, telling Tardif that “it

generally takes about an hour to get a prisoner medication” and that “they would

6
try to get [Tardif her] medication soon.” Id. According to Tardif, Officer Otero

checked on her “regularly” for the next three to four hours and “expressed her

concern” for Tardif’s epileptic condition. Id. During this time, Officer Otero also

“repeatedly told [Tardif] that she was trying to obtain attention for [Tardif], but

she was not getting a response from her superiors.” Id.

In the early afternoon, Officer Otero observed Tardif begin to shake, lose

consciousness, and collapse to the floor of her cell. Officer Otero retrieved the keys

to the cell, turned Tardif on her side, and held her until she regained

consciousness. Shortly after being dispatched, EMTs arrived at around 2:00 p.m.

and transported Tardif to Bellevue Hospital by 2:15 p.m., where she received a

dose of Lamictal and was again medically cleared for arraignment. Tardif was

transferred back to the 20th Precinct, arraigned that evening, and released on her

own recognizance.

II. The Two Police Confrontations on March 21, 2012

A. The Early Morning Incident

At trial, the parties testified regarding two confrontations between Tardif

and NYPD officers that occurred during Occupy Wall Street demonstrations in the

early morning and afternoon of March 21, 2012. The previous evening, around

7
eighty to one-hundred protestors encamped inside Union Square Park, and about

seventy police officers in the area monitored the demonstration. Around

midnight, a line of police officers moved southward through the park ordering,

and sometimes physically moving, protestors out. After clearing the area, officers

placed metal barricades along the park’s southern stairs, with about forty police

officers stationed on the inside of the barricades and the group of eighty to one-

hundred protestors congregated outside along the 14th Street plaza. The

remaining thirty or so officers stationed themselves about ten feet to the east and

west of the protestors. Among these officers was Sergeant (now Lieutenant)

Mattera, who was deployed to Union Square Park for crowd control.

After being removed from the park, the demonstrators, including Tardif,

began shaking the metal barricades and yelling at the officers. At around 2:00 a.m.,

police officers told protestors that sanitation workers would confiscate and discard

any unattended property. Daniel Shockley, a volunteer legal observer with a non-

profit organization, and Stephanie Shockley, his wife, testified that officers moved

into the crowd and, in some cases, confiscated items that people were standing

next to and, in other cases, grabbed items out of people’s hands and passed them

8
to sanitation workers for disposal. According to Tardif, one officer confiscated her

backpack.

Tardif testified that, after confiscating unattended property, the officers on

both sides of the protestors moved their lines inward, causing the protestors to

back into each other. According to Tardif, an unidentified officer then came

through the police line and shoved her in the chest with his baton, causing her to

hit the ground. Tardif testified that, as she rose to her feet and “took a couple of

steps,” Sergeant Mattera “quickly” approached her and grabbed her shirt. Id. at

893-94. Tardif—then a 23-year-old, standing 5’1’’, and weighing 175 pounds—

testified that Sergeant Mattera “twisted and threw [her] away from him” onto the

ground. Id. at 894. As Tardif hit the ground, her head struck the pavement,

causing her to sustain a concussion and lose consciousness. Tardif testified that,

prior to her interaction with Sergeant Mattera, she “had not put [her] hands on

any other officer” and was six or seven feet from the closest officer when he

grabbed her. Id. at 897.

Daniel Shockley testified similarly. He stated that, about ten feet from him,

he observed Tardif “just standing with other protestors a few feet away from the

police” and that he “saw an officer lunge out of the group of police officers and

9
grab” Tardif. Id. at 703-04. According to Shockley, Sergeant Mattera “spun

[Tardif] around” and “threw her backwards.” Id. at 704. He further testified that

Tardif “landed on her back” and the back of her head “hit the sidewalk.” Id. at

705-06. Shockley then stated that, after this confrontation, protesters began yelling

for a medic, but Sergeant Mattera did not move toward Tardif or attempt to render

any aid after pushing her.

For his part, Sergeant Mattera testified to a different version of events.

According to Sergeant Mattera, Tardif suddenly appeared in his field of vision and

“looked as if she was about to run into the back of [another] police officer.” Id. at

797. It also “looked like she had her hands on the back of [a] police officer.” Id. at

776. In an effort to “prevent the situation from further escalating,” id. at 801, he

“instinctively” grabbed Tardif and “pull[ed] her off to the side,” id. at 797, causing

her body to “twist[] around” toward him, id. at 781. Sergeant Mattera further

testified that his “intention was to pull her off to the side and get her away from

the police officer that she was running into,” id. at 800, but “she was a lot heavier

than [he] expected” and, during this motion, he “lost grip of her and she fell

down,” id. at 797. According to Sergeant Mattera, he did not intend for Tardif to

fall to the ground and was unable to break her fall. He also testified that he did

10
not believe that he “could have used less force to accomplish [his] goal.” Id. at 802-

03. He further explained that he did not place Tardif under arrest because he

“didn’t feel like she knew what she was doing.” Id. at 801. He thought “she was

running up to see what was going on” and it was a “coincidence that . . . the one

person that she ran behind was a uniformed police officer.” 3 Id. at 801.

Shortly after the incident, an ambulance arrived and Tardif was thereafter

transported to Beth Israel Hospital at 4:00 a.m., where she was diagnosed with and

treated for a concussion, and given a soft cast and crutches for a sprained ankle.

B. The Afternoon Incident

After receiving treatment at Beth Israel Hospital, Tardif returned to Union

Square Park later that same morning in order to confront the then-unidentified

officer with whom she had the earlier incident. At that time, there were around

forty to fifty protestors inside the park and an estimated sixty to seventy-five

police officers stationed in the park for crowd control. According to Sergeant

McManus, the protestors in the park were taunting the police.

3Frame-by-frame video footage of the encounter, although not capturing the lead-up,
shows Sergeant Mattera’s left hand clenched onto the back of Tardif’s shirt near her
midsection. Tardif is subsequently seen falling backwards. Tardif lands several feet from
where Sergeant Mattera contacted her. Protestors in the background can then be heard
shouting for a medic. Daniel Shockley can be seen in the video watching the encounter
as it transpired.
11
 Sometime that afternoon, Sergeant McManus and ten to fifty other officers

formed a police line around one of the protestors who was being arrested in order

to prevent others from interfering with the arrest. Tardif testified that, when she

arrived at the park, she walked up and down the police line with her crutches from

a few feet away. According to Tardif, while she was moving, Sergeant McManus

came “through the line . . . and pushed” her. Id. at 905. Tardif fell backwards off

of her crutches and hit the ground, although two bystanders broke her fall. Tardif

further testified that Sergeant McManus then “turned and walked back behind the

police line.” Id. at 907. Tardif was not arrested.

However, during Sergeant McManus’s testimony, he categorically and

repeatedly denied using any force against Tardif. In particular, Sergeant

McManus explained that, while standing in the police line, he thought one

protestor “was going to try to go by [him], and then [he] looked to [the] left and

saw Mary Tardif on the ground.” Id. at 825. Thus, according to Sergeant

McManus, the first time he saw Tardif was when he “turned around and saw her

12
. . . on the floor” approximately ten to fifteen feet from him. Id. at 826. He

emphasized that his hand never touched Tardif. 4

III. Procedural History

Tardif brought this action in the Southern District of New York on June 13,

2013 and, following discovery, filed the operative complaint on January 15, 2016.

As relevant here, Tardif alleged that the City violated the ADA in failing to

reasonably accommodate her epilepsy by providing access to her epilepsy

medication while in police custody on the morning of March 18, 2012. She also

alleged that Sergeants Mattera and McManus, in the course of their employment

as police officers, committed assault and battery against her in violation of New

York law.

A. Summary Judgment

On June 1, 2016, the City moved for summary judgment on, inter alia,

Tardif’s ADA claim, her assault and battery claims against Sergeant McManus

individually, and her respondeat superior claim against the City arising from the

alleged assaults and batteries, in separate incidents, by Sergeants Mattera and

4During his testimony, Sergeant McManus was shown a photograph of the incident and
he asserted that it showed at least three people between Sergeant McManus and Tardif
as she was falling.
13
McManus. 5 Tardif opposed the motion. On February 6, 2017, the magistrate judge

issued a report and recommendation on the City’s motion.

On March 22, 2017, the district court conducted a de novo review of the report

and recommendation, adopting some of the recommendations but not others. The

district court, inter alia, granted summary judgment on the ADA claim, concluding

that “[m]ere failure [to] attend to the medical needs of a person in custody does

not in itself violate the ADA.” Special App’x at 53. The district court denied

summary judgment on the assault and battery claims against Sergeant McManus

individually, finding that there was a genuine dispute of material fact as to

whether his use of force was reasonable. The district court granted summary

judgment on the respondeat superior claim against the City.

On August 23, 2017, following cross-motions for reconsideration, the district

court adhered to its ruling on the ADA claim and explained that, to the extent

Tardif was also attempting to assert the claim under a “reasonable

accommodation” theory, there was no evidence that any failure by the City to

provide Tardif with her epilepsy medication “was due to her disability.” Id. at 64-

5 Unlike Sergeant McManus, Tardif did not name Sergeant Mattera as a defendant in her
lawsuit, but rather only sought to hold the City liable for his alleged assault and battery
under a respondeat superior theory of liability.

14
65. The district court, however, granted Tardif’s motion for reconsideration to the

extent that it had granted summary judgment to the City with respect to the

respondeat superior claim that was based on her assault and battery claims under

New York law (which had survived summary judgment), and it allowed that

respondeat superior claim to also proceed to trial. The district court also denied the

defendants’ motion for reconsideration on Tardif’s underlying assault and battery

claims against Sergeant McManus.

B. The Trial

As relevant here, three claims proceeded to trial arising from Tardif’s two

encounters with police on March 21, 2012, neither of which resulted in her arrest:

(1) a Fourteenth Amendment excessive force claim under 42 U.S.C. § 1983 against

Sergeant McManus individually; (2) assault and battery claims under state law

against Sergeant McManus individually; and (3) a respondeat superior claim against

the City predicated on the alleged assaults and batteries by Sergeant Mattera and

Sergeant McManus in different incidents. Tardif also proceeded to trial on, inter

alia, her respondeat superior claim predicated on additional assaults and batteries

allegedly committed by several officers during a separate protest near Federal Hall

in the Financial District on April 16, 2012, which resulted in her arrest.

15
 With respect to the jury instructions, the district court gave a justification

instruction for the assault and battery claims, over Tardif’s objection, that allowed

the jury to consider the reasonableness of the officer’s force, including the officer’s

subjective intent. The justification instruction focused on the use of force to effect

an arrest. During deliberations, in response to a juror note regarding the

applicable standard in a non-arrest context, the district court provided the same

justification instruction, again over Tardif’s objection. The jury subsequently

reached a verdict in favor of the City and the individual officers on all of Tardif’s

claims.

This appeal followed.

DISCUSSION

I. The ADA Claim

Tardif asserts that the City failed to provide a reasonable accommodation

under the ADA by not adequately responding to her requests for medication for

her disability (epilepsy) while she was in police custody prior to her arraignment,

and that the district court erred in granting summary judgment for the City on that

claim.

16
 We review de novo a district court’s grant of summary judgment, resolving

all ambiguities and drawing all permissible factual inferences in favor of the non-

moving party. See Garcia v. Hartford Police Dep’t, 706 F.3d 120, 126-27 (2d Cir. 2013).

Summary judgment is appropriate only if “the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(a). Where the non-movant bears the burden

of proof at trial, the movant’s initial burden at summary judgment can be met by

pointing to a lack of evidence supporting the non-movant’s claim. See Celotex Corp.

v. Catrett, 477 U.S. 317, 325 (1986).

More than thirty years ago, Congress enacted the ADA “to provide a clear

and comprehensive national mandate for the elimination of discrimination against

individuals with disabilities.” 42 U.S.C. § 12101(b)(1). The Act’s first three titles

prohibit discrimination against individuals with disabilities “in three major areas

of public life”: employment and hiring (Title I); public services, programs, and

activities (Title II); and public accommodations (Title III). Tennessee v. Lane, 541

U.S. 509, 516-17 (2004).

Title II of the ADA provides that “no qualified individual with a disability

shall, by reason of such disability, be excluded from participation in or be denied

17
the benefits of the services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity.” 42 U.S.C. § 12132. A “qualified

individual with a disability” is “an individual with a disability who, with or

without reasonable modifications to rules, policies, or practices . . . meets the

essential eligibility requirements for the receipt of services or the participation in

programs or activities provided by a public entity.” Id. § 12131(2). A “public

entity” includes “any State or local government” and “any department, agency,

special purpose district, or other instrumentality of a State or States or local

government.” 6 Id. § 12131(1)(A)-(B).

To establish a claim under Title II, a plaintiff must demonstrate “(1) that she

is a qualified individual with a disability; (2) that she was excluded from

participation in a public entity’s services, programs or activities or was otherwise

discriminated against by a public entity; and (3) that such exclusion or

discrimination was due to her disability.” Davis v. Shah, 821 F.3d 231, 259 (2d Cir.

6The term “‘discrimination,’ which is not defined in Title II, may take its meaning from
Title I.” Henrietta D. v. Bloomberg, 331 F.3d 261, 273 n.7 (2d Cir. 2003) (citation omitted).
Title I of the ADA states, in relevant part, that the term “discriminate against a qualified
individual on the basis of disability” includes “not making reasonable accommodations
to the known physical or mental limitations of an otherwise qualified individual with a
disability . . . , unless such covered entity can demonstrate that the accommodation
would impose an undue hardship on the operation . . . of such covered entity.” 42 U.S.C.
§ 12112(b)(5)(A).

18
2016) (internal quotation marks omitted). A plaintiff may base her Title II claim

on any of three theories of liability: disparate treatment (intentional

discrimination), disparate impact, or failure to make a reasonable accommodation.

See Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009); accord Nunes v. Mass. Dep’t of

Corr., 766 F.3d 136, 144-45 (1st Cir. 2014) (detailing the three theories).

Here, Tardif proceeded solely under a reasonable accommodation theory.

There is no dispute that Tardif, who suffers from epilepsy, qualifies as an

“individual with a disability” under Title II. See 42 U.S.C. § 12102(1)(A) (defining

“disability” under the ADA as “a physical or mental impairment that substantially

limits one or more major life activities of [an] individual”); 28 C.F.R. § 35.108(b)(2)

(classifying epilepsy as a “[p]hysical or mental impairment”). Nor is there a

dispute that the City constitutes a “public entity” under Title II. Moreover, it is

clear that access to custodial medical services available throughout an arrestee’s

pre-arraignment detention constitutes “services, programs, or activities” of the

City. 7 See United States v. Georgia, 546 U.S. 151, 157 (2006) (noting that “medical

7In her reply brief, rather than continuing to link the application of the ADA to custodial
medical services, Tardif seeks to extend her legal claim by arguing more broadly that “a
safe custodial environment” was the “benefit” that the City denied her under the ADA
by failing to timely provide medication for her epilepsy. Reply Br. at 4-5. We decline to
address the broader issue because “[i]ssues raised for the first time in a reply brief are
generally deemed waived,” Conn. Bar Ass’n v. United States, 620 F.3d 81, 91 n.13 (2d Cir.
19
care” constitutes part of a prison’s “services, programs, or activities” (quoting 42

U.S.C. § 12132 and citing Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998))); see

also Wright v. N.Y. State Dep't of Corr., 831 F.3d 64, 72 (2d Cir. 2016) (stating that

prison medical services constitute “programs, services, or activities” under Title

II).

This case thus presents the following legal question for this Court to resolve:

whether the alleged failure by the police to provide custodial medical services to

Tardif in a timely and adequate manner prior to her arraignment, by itself,

constitutes a failure to make a reasonable accommodation “by reason of” an

individual’s disability under the ADA. We hold that it does not.

In Henrietta D. v. Bloomberg, we addressed the proper standard of causation

for a reasonable accommodation claim. 331 F.3d 261, 278-80 (2d Cir. 2003). There,

a New York City agency dedicated to assisting HIV-positive residents routinely

failed to provide such residents with adequate access to public assistance benefits

and services due, in part, to “systemic breakdowns” and bureaucratic dysfunction.

Id. at 264, 273, 278. In determining whether plaintiffs had established that the

2010), but note that whether Title II applies more broadly in arrest situations has divided
our sister circuits, see City & County of San Francisco v. Sheehan, 135 S. Ct. 1765, 1772-74
(2015) (dismissing the question as improvidently granted); see also id. at 1778-79 (Scalia,
J., concurring in part and dissenting in part) (noting circuit split).
20
agency had denied them public services “by reason of” their disabilities where

there were multiple potential causes of the denial, we held that, “[i]n assessing

whether one cause among many constitutes [a] proximate cause,” id. at 278,

plaintiffs must establish that their “disabilities were a substantial cause of their

inability to obtain services,” rather than “so remotely or insignificantly related to

their disabilities as not to be ‘by reason’ of them,” id. at 279. “Quite simply,” we

concluded, “the demonstration that a disability makes it difficult for a plaintiff to

access benefits that are available to both those with and without disabilities is

sufficient to sustain a claim for a reasonable accommodation.” Id. at 277. 8

Applying that standard here, there is no evidence (or even an allegation)

that Tardif’s disability made it difficult in any way for her to access benefits—

namely, medical services—that were available to all pretrial detainees. In other

words, Tardif’s epilepsy did not interfere with her ability to access medical

services, and not even her operative complaint alleges a connection between the

City’s alleged delay in administering epilepsy medication and any disability-

based reason on the City’s part. In the complete absence of evidence that Tardif’s

8 Although “the basic analytical framework of the ADA includes . . . a comparative
component,” “[i]t does not follow . . . from this framework that a plaintiff must also
demonstrate disparate impact in all cases,” including reasonable accommodation claims.
Henrietta D., 331 F.3d at 276.
21
epilepsy caused a deprivation of medical services, the fact that her disability was

her motivation for seeking out such services does not suddenly transform her

allegations regarding the inadequate medical treatment into a “failure to

accommodate” claim. At its core, the issue here is not whether Tardif was denied

medical services because she has a disability. Instead, her claim relates solely to

whether she received adequate medical treatment in police custody for her

disability, and such a claim is not cognizable under the ADA. To hold otherwise

would allow inmates to litigate in federal court virtually every medical

malpractice claim arising in a custodial setting under the auspices of the ADA.

Such a result is entirely at odds with the statutory language of Title II and its

purpose. 9

Our holding is consistent with prior case authority in this Circuit addressing

analogous situations. For example, in Doe v. Pfrommer, we held that where an

individual challenges “the substance of the services provided”—rather than

9 We note that this holding does not leave pretrial detainees, such as Tardif, without a
remedy; rather, such a claim for a denial of medical treatment can be pursued under 42
U.S.C. § 1983, as a due process claim under a deliberate indifference standard (as Tardif
alternatively asserted in her complaint). See, e.g., Weyant v. Okst, 101 F.3d 845, 856 (2d
Cir. 1996) (“[T]he official custodian of a pretrial detainee may be found liable for violating
the detainee’s due process rights if the official denied treatment needed to remedy a
serious medical condition and did so because of his deliberate indifference to that need.”).

22
“illegal discrimination”—there is no ADA violation. 148 F.3d 73, 84 (2d Cir. 1998).

Similarly, in United States v. University Hospital, we noted that “where medical

treatment is at issue, it is typically the [disability] itself that gives rise to, or at least

contributes to, the need for services” and thus held that Section 504 of the

Rehabilitation Act “prohibits discrimination against a [disabled] individual only

where the individual’s [disability] is unrelated to, and thus improper to

consideration of, the services in question.” 10 729 F.2d 144, 156 (2d Cir. 1984).

Moreover, in Cushing v. Moore, we held that the Rehabilitation Act “does not create

a cause of action based on a [disability] that is directly related to providing the

very services at issue.” 970 F.2d 1103, 1109 (2d Cir. 1992); see also Schnauder v.

Gibens, 679 F. App’x 8, 10 (2d Cir. 2017) (summary order) (rejecting the assertion

by an inmate that “denial of timely and meaningful medical treatment for his

[broken] nose constituted a failure to provide a ‘reasonable accommodation’”). 11

10“Because the standards imposed by Title II on public entities are generally equivalent
to those of § 504” of the Rehabilitation Act, “we treat claims under the two statutes
identically in most cases.” Davis, 821 F.3d at 259 (internal quotation marks omitted).
11Tardif’s reliance on our decisions in Wright, 831 F.3d at 64, as well as McGugan v. Aldana-
Bernier, 752 F.3d 224 (2d Cir. 2014), is entirely misplaced. Wright involved a claim that,
because of the plaintiff’s mobility issues resulting from his disabilities, the prison denied
the plaintiff meaningful access to programs and services that were routinely accessed by
other inmates. 831 F.3d at 73. In McGugan, we addressed a claim of intentional
discrimination, and held that an actionable Rehabilitation Act claim existed for the denial
of medical treatment “dictated by bias rather than medical knowledge.” 752 F.3d at 231.
23
 Several of our sister circuits have reached the same conclusion. See, e.g.,

Simmons v. Navajo County, 609 F.3d 1011, 1022 (9th Cir. 2010) (“[T]o the extent that

the [plaintiffs] argue that [the jail] violated the ADA by depriving [the inmate] of

‘programs or activit[ies] to lessen his depression,’ such argument is not actionable

under the ADA. The ADA prohibits discrimination because of disability, not

inadequate treatment for disability.” (fifth alteration in original)), overruled in part

on other grounds by Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en

banc); Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (“[T]he Act would not be

violated by a prison’s simply failing to attend to the medical needs of its disabled

prisoners. . . . The ADA does not create a remedy for medical malpractice.”).

Tardif attempts to support her position by relying substantially on Kiman v.

New Hampshire Department of Corrections, where a former inmate asserted

violations of Title II based upon the prison’s alleged failure to properly treat his

disease (amyotrophic lateral sclerosis), and failure to accommodate his resulting

disability. 451 F.3d 274, 276 (1st Cir. 2006). We find Tardif’s reliance on Kiman

Therefore, neither of these holdings can be construed to eliminate the statutory
requirement, in a reasonable accommodation case, that a plaintiff demonstrate that the
treatment or services were denied because of a disability, rather than for a disability. In
fact, in McGugan, we even warned against allowing “plaintiffs an almost unfettered
ability to re-frame claims of medical malpractice into federal claims of discrimination on
the basis of disability.” Id. at 234.
24
unpersuasive. As a threshold matter, we note that the First Circuit affirmed

summary judgment on the portion of the plaintiff’s claim related to the prison’s

“actions regarding his diagnosis, medical consultations, physical therapy, or

medical dosages” because the plaintiff failed to establish that such actions were

“so unreasonable as to demonstrate that they were discriminating against him

because of his disability.” Id. at 285 (emphasis added). Moreover, although the

court allowed the claim to survive summary judgment as to the alleged failure to

provide adequate medications, the court noted that there was evidence that the

corrections officers “routinely” failed to provide those medications “throughout

[the plaintiff’s] time in prison.” Id. at 286. Thus, the court’s reasoning suggested

that, under the facts of that case, the “outright denial of medical services” to a

disabled inmate over several months “despite his repeated requests” could allow

the inmate to demonstrate at trial that such denial was because of his disability.

Id. at 286-87. Here, by contrast, there is no evidence that the delay in providing

Tardif’s medication was more than an isolated and temporary incident; nor is there

any indication that the City systematically delays or denies pre-arraignment

detainees reasonable medical services for their disabilities. 12 Thus, Kiman is

12In fact, notwithstanding the alleged denial of medication, there is uncontroverted
evidence of the City’s utilization of various standard procedures to address Tardif’s
25
factually distinguishable. In any event, to the extent that the language in Kiman

could be construed as providing a more general avenue to sue under the ADA any

time there is an allegation by an inmate of a denial of medical services without the

support of a “medical ‘judgment’” by the prison, Kiman, 451 F.3d at 287, we

respectfully disagree with such a holding.

Finally, apparently recognizing the deficient record, Tardif attempts to shift

her burden to the City, arguing that the City’s unexplained inaction following her

requests for medication is sufficient evidence for her claim to go to a jury. But this

unexplained failure to provide medication, by itself, does not allow for a reasonable

inference that it was “by reason of” the individual’s disability. At summary

judgment, it is not the City’s burden to proffer a justification for the delay or denial

where the record is otherwise silent. Instead, Tardif bears the burden of

disability. Officer Lara documented Tardif’s medical condition upon learning of her
epilepsy. The City also transported Tardif to Manhattan Central Booking where she
spoke with EMTs regarding her condition. Tardif was then transferred to Bellevue
Hospital where medical professionals evaluated her condition. After Officer Lara
informed medical staff that Tardif required epilepsy medication, her attending physician
provided her with a generic version of Lamictal (although her prescription was for
Lamictal XR), documented in her medical records that Tardif reported “no physical or
medical complaints,” and medically cleared her for arraignment. App’x at 142. The City
then, as Tardif concedes, “transported her to the special medical precinct, precisely so she
could access all the benefits available to those with medical conditions.” Reply Br. at 5.
Thus, despite Tardif’s efforts to classify this case as involving the “knowing failure to
provide any services” for her disability, id. at 8 (emphasis added), it is, at best, a claim of
inadequate medical services due to an alleged delay in providing medication.
26
establishing causation at trial, and it was thus entirely proper for the City to merely

note the lack of evidence of causation supporting her reasonable accommodation

claim. See Celotex Corp., 477 U.S. at 325. Because Tardif was unable to point to any

facts in the record from which a reasonable jury could conclude that Tardif’s

epilepsy substantially caused the City’s delay in administering medication, the

district court correctly concluded that “[m]ere failure [to] attend to the medical

needs of a person in custody does not in itself violate the ADA” under a reasonable

accommodation theory. Special App’x at 53.

In sum, the record presents no facts from which a reasonable jury could infer

that there was a disability-based reason for the delay in Tardif’s medical services.

Any shortcomings that existed in the provision of medical services for Tardif’s

epilepsy provide no basis to conclude that she was denied meaningful access to

such services because of her disability, and thus the ADA claim fails as a matter of

law. Accordingly, the district court properly granted summary judgment on the

ADA claim.

II. The Assault and Battery Claims

With respect to her assault and battery claims relating to Sergeants Mattera

and McManus, Tardif argues that she is entitled to a new trial on several grounds.

27
As to the trial testimony, Tardif argues that the district court erred in restricting

the questions that could be asked on her direct examination regarding her personal

background. Tardif’s remaining two grounds focus on the district court’s

instructions to the jury on the defense of justification—that is, assessing the

reasonableness of the officer’s use of force. In particular, Tardif contends that a

justification defense by a police officer is applicable under New York law only in

an arrest situation and, thus, the district court erred in applying that instruction to

the use of force by officers against her on March 21, 2012, because no arrest was

being made. Moreover, Tardif asserts that the justification instruction erroneously

advised the jury that the officer’s subjective intent was a permissible factor in

assessing the reasonableness of the officer’s conduct.

As set forth below, the district court did not abuse its discretion in sustaining

objections to certain questions regarding Tardif’s background. We also conclude

that the district court correctly determined that a justification defense exists under

New York law for police officers utilizing force in a non-arrest situation. However,

as the defendants concede, the instruction given to the jury was erroneous because

it suggested that there was a subjective element to the reasonableness analysis,

even though New York law (like federal law) uses an objective standard to assess

28
an officer’s use of force. We further conclude that, although the error was harmless

as to the claim against Sergeant McManus (and the related respondeat superior claim

against the City arising from Sergeant McManus’s alleged conduct) because

justification was not at issue with respect to the claims against him, the error likely

prejudiced Tardif as to the jury’s assessment of Sergeant Mattera’s conduct and

warrants a new trial on the respondeat superior claim against the City arising from

his alleged assault and battery.

A. The Evidentiary Challenge

Tardif contends that, during trial, the district court erred in limiting

testimony regarding her personal background. Specifically, she contends that

such testimony was necessary to demonstrate her commitment to social justice in

order to rebut the City’s opening argument that she had exaggerated her story and

was only suing for the money.

In the City’s opening argument, defense counsel contended that Tardif was

“inventing and exaggerating” the events surrounding each of her claims at trial,

App’x at 679, and that she “want[ed the jury] to give her money for those

inventions and exaggerations,” id. at 686. During Tardif’s direct examination, in

addition to other background testimony regarding her involvement in the Occupy

29
Wall Street movement, her counsel attempted to elicit testimony regarding the fact

that Tardif adopted two children from Honduras who were refugees, that Tardif

herself was adopted from Peru, and that she worked as a sign language interpreter

for hearing-impaired children. Following multiple, sustained objections by

defense counsel, the district court at side bar instructed Tardif’s counsel that it did

not “want [him] to elicit anything that plays upon the sympathy of jurors” but

instead “to get right to the heart of matters.” Id. at 879.

At the end of Tardif’s direct testimony, plaintiff’s counsel submitted an offer

of proof as to how additional background testimony was necessary in order to

rebut the City’s theory that her lawsuit was simply motivated by money. The

district court declined the request to elicit such additional evidence, concluding

that Tardif’s testimony had made clear “that her motives are pure and that she’s

trying to make the world a better place” by making sure that “people who are

arrested [are] treated appropriately.” Id. at 925-26. Tardif now challenges that

evidentiary ruling.

We review evidentiary rulings for abuse of discretion and reverse only for

manifest error. See Manley v. AmBase Corp., 337 F.3d 237, 247 (2d Cir. 2003).

Although relevant evidence is generally admissible, Fed. R. Evid. 402, district

30
courts “may exclude relevant evidence if its probative value is substantially

outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading

the jury, undue delay, wasting time, or needlessly presenting cumulative

evidence,” Fed. R. Evid. 403. Background evidence may provide necessary context

to a witness’s substantive testimony, but district courts have “wide discretion

concerning the admissibility of background evidence.” United States v. Blackwell,

853 F.2d 86, 88 (2d Cir. 1988).

Here, we conclude that the district court operated well within its broad

discretion in limiting the scope of the testimony regarding Tardif’s personal

background. More specifically, the district court determined that the proffered

testimony—namely, Tardif’s adoption of two refugee children, her own adoption

as a child, and her work as a sign language interpreter for hearing impaired

children—might prejudice the jury by playing upon their sympathies and would

waste time. Moreover, to the extent Tardif sought to introduce these details of her

“social justice commitment” to rebut the City’s accusation that she was motivated

by money in making the allegations in the lawsuit, App’x at 879, Tardif was

permitted to testify to other facts establishing her concerns for social justice. For

example, Tardif testified about the purpose of the Occupy Wall Street movement,

31
why she became involved with the movement, how she remains a member of

Occupy Wall Street, how she feels about being part of the movement, why she

continued to participate in protests after November 2011, and how she contributed

to the protests by “tend[ing] to” protestors injured during marches as a “street

[medic].” Id. at 884-85. The district court also, over defense counsel’s objection,

allowed Tardif to testify as to why she brought this lawsuit. See id. at 924 (“I had

originally wanted to make things better for people in custody that had disabilities

so that there would be a standard protocol to treat people instead of just throwing

them to the side.”). Thus, contrary to Tardif’s argument, the district court

permitted Tardif, through her testimony, to rebut any suggestion by the City that

she brought this action for financial reasons. Under these circumstances, it is well

within a district court’s discretion to determine, under Rule 403, that the probative

value of any additional background testimony is substantially outweighed by the

danger of unfair prejudice to the defendants because of juror sympathy and by the

additional time that would be necessary to explore that background, especially

where the district court concluded that there had already been “so much wasted

time from [Tardif’s] side.” Id. at 879. Accordingly, we conclude that this

32
evidentiary determination by the district court was not an abuse of discretion and

provides no basis for a new trial.

B. Justification under New York Law

Tardif also contends that the district court erred by instructing the jury on

the availability of a justification defense to assault and battery claims under New

York law. “We review a claim of error in the district court’s jury instructions de

novo . . . .” Sheng v. M&TBank Corp., 848 F.3d 78, 86 (2d Cir. 2017) (quoting Turley

v. ISG Lackawanna, Inc., 774 F.3d 140, 152 (2d Cir. 2014)). “A jury charge is

erroneous if it misleads the jury as to the correct legal standard, or if it does not

adequately inform the jury of the law.” Dancy v. McGinley, 843 F.3d 93, 116 (2d

Cir. 2016) (quoting Hathaway v. Coughlin, 99 F.3d 550, 552 (2d Cir. 1996)).

In describing the purported error in this case, Tardif takes the position that

under state law, “any force used” in a non-arrest context “must give rise to a claim

for assault and battery,” and no justification is permitted. Appellant’s Br. at 38-39.

Contrary to Tardif’s contention, New York courts have never articulated such a

sweeping theory of assault-and-battery liability and we decline to do so here.

Instead, as set forth below, we hold that New York law—consistent with federal

Section 1983 excessive force jurisprudence—permits a police officer to use an

33
objectively reasonable degree of force in the performance of a public duty,

including a non-arrest situation.

The elements of New York assault and battery and Section 1983 excessive

force claims are “substantially identical.” Posr v. Doherty, 944 F.2d 91, 94-95 (2d

Cir. 1991). Under New York law, civil assault “is an intentional placing of another

person in fear of imminent harmful or offensive contact.” Charkhy v. Altman, 678

N.Y.S.2d 40, 41 (1st Dep’t 1998) (internal quotation marks omitted); accord Girden

v. Sandals Int'l, 262 F.3d 195, 203 (2d Cir. 2001). Civil battery “is an intentional

wrongful physical contact with another person without consent.” Charkhy, 678

N.Y.S.2d at 41 (internal quotation marks omitted); accord Girden, 262 F.3d at 203.

To succeed on assault or battery claims in the law enforcement context, a plaintiff

must also demonstrate that the defendant officer’s conduct “was not reasonable

within the meaning of the New York statute concerning justification of law

enforcement’s use of force in the course of their duties.” Nimely v. City of New York,

414 F.3d 381, 391 (2d Cir. 2005); accord Jamison v. Metz, 541 F. App’x 15, 20 (2d Cir.

2013) (summary order).

34
 New York Penal Law § 35.30 establishes a justification defense for an

officer’s use of force in the performance of several enumerated public duties. The

statute states, in relevant part, that:

A police officer . . . may use physical force when and to the extent he
or she reasonably believes such to be necessary to effect [an] arrest, or
to prevent [an] escape from custody, or in self-defense or to defend a
third person from what he or she reasonably believes to be the use or
imminent use of physical force.

N.Y. Penal Law § 35.30(1). 13 Section 35.30(1) “requires the jury to conduct

precisely the same analysis as does the reasonableness standard” under the Fourth

Amendment. Heath v. Henning, 854 F.2d 6, 9 (2d Cir. 1988). Indeed, per the text of

the statute, the use of physical force “when and to the extent [the officer]

reasonably believes such to be necessary,” is the “functional equivalent” of an

objective reasonableness standard. Id. (alteration in original) (quoting N.Y. Penal

Law § 35.30(1)). Although Tardif argues that this justification defense is limited to

13Although codified in New York’s penal law compilation, New York courts have applied
Section 35.30 to both civil and criminal claims against police officers. Compare Brunelle v.
City of New York, 702 N.Y.S.2d 648, 648-49 (2d Dep’t 2000) (applying the justification
statute to civil action against the City by police officer seeking to recover damages from
injury sustained from fellow officer in the course of performing their duties), with People
v. Colecchia, 674 N.Y.S.2d 10, 11 (1st Dep’t 1998) (applying the justification statute to
manslaughter charge against police officer).

35
the circumstances enumerated in Section 35.30(1), and thus cannot apply to a non-

arrest situation involving crowd control, we disagree for several reasons.

First, we have never limited public authority defenses under New York law

to arrest situations. To the contrary, as noted above, we held in Nimely that, even

though justification is a defense under New York Penal Law, a lack of justification

is part of a plaintiff’s burden of demonstrating the unreasonableness of an officer’s

action “in the course of their duties.” 414 F.3d at 391.

Second, both the penal law and case authority in New York make clear the

limited grounds for justification articulated in Section 35.30 are not meant to be

exhaustive as it relates to any police action. With respect to the statutory

framework, New York Penal Law § 35.05(1) states, in relevant part, that “use of

physical force . . . is justifiable and not criminal when . . . [it] is performed by a

public servant in the reasonable exercise of his official powers, duties or functions.”

Id. (emphasis added); see also People v. Mattison, 428 N.Y.S.2d 355, 357 (3d Dep’t

1980) (“[Section 35.05(1)] is chiefly meant to afford limited protection when

provisions defining malum prohibitum offenses are violated in the performance

of official responsibilities.”). 14 The New York Court of Appeals likewise, without

14Tardif’s assertion that the New York Pattern Jury Instructions (“PJI”) on a justification
defense support her interpretation of New York law is also unavailing. Appellant’s Br.
36
any reference to limitations on the use of force to arrest situations, has described

the analysis of a police officer’s use of force as more broadly focusing upon

whether such force was “more than necessary under all the circumstances.” Jones

v. State, 33 N.Y.2d 275, 280 (1973) (analyzing force used by corrections officer

during a riot at a prison under the same standard as would be used by the police

in “making an arrest, maintaining someone in custody or investigating a traffic

infraction”); see also Kline v. State, 278 N.Y. 615, 616 (1938) (finding that liability

existed for an assault on plaintiff by troopers during a clash with a group of people

on a highway trying to block a truck, where the force was “without cause or

provocation and unjustifiable”); Disla v. City of New York, 986 N.Y.S. 2d 463, 465

(1st Dep’t 2014) (stating that “battery committed in the performance of a public

duty” requires “excessive force”).

Pursuant to this legal framework, New York courts have dismissed assault

and battery claims in non-arrest situations where it was clear from the record that

at 37 (citing 2A N.Y. PJI–Civil 3:4). The pattern instruction is based upon New York Penal
Law § 35.30 and discusses the circumstances enumerated in that section, including an
arrest. However, nothing in the PJI suggests that such situations are exclusive. To the
contrary, the instruction at issue is broadly entitled “Battery Committed in Performance of
Public Duty or Authority.” 2A N.Y. PJI–Civil 3:4 (emphasis added). Moreover, the
comment for this instruction also broadly references “performance of a public duty,”
which would undoubtedly include crowd control by a police officer. See id. cmt. at 24-25.
37
the use of force was justified and reasonable. In Harris v. City of New York, for

example, the Second Department affirmed the dismissal of assault and battery

claims because officers, while executing a search warrant for the plaintiff’s house,

used “reasonable force to effectuate the detention of the occupants” by

handcuffing them for the duration of the search. 62 N.Y.S.3d 411, 413-14 (2d Dep’t

2017) (internal quotation marks omitted). Likewise, in Ahmad v. City of New York,

the First Department held that “minor contact between plaintiff’s and the officer’s

hands did not constitute excessive force,” where an officer effecting a traffic stop

on foot made contact with the plaintiff while reaching into the car for the gear

shift. 15 101 N.Y.S.3d 48, 49 (1st Dep’t 2019).

Finally, we note that Tardif’s position would render a police officer

incapable of performing some of his or her most basic functions and

responsibilities using reasonable force, without being subject to civil liability for

15 In this regard, New York law is entirely consistent with the scope of the analysis of a
police officer’s use of force under the Fourth Amendment in both arrest and non-arrest
situations. More specifically, in Graham v. Connor, the Supreme Court recognized that,
where the use of force occurs “in the course of an arrest, investigatory stop, or other
‘seizure’ of a free citizen,” courts should analyze the reasonableness of the use of force,
which generally requires “a careful balancing of ‘the nature and quality of the intrusion
on the individual’s Fourth Amendment interests’ against the countervailing
governmental interests at stake.” 490 U.S. 386, 395-96 (1989) (quoting Tennessee v. Garner,
471 U.S. 1, 8 (1985)).
38
assault or battery. In other words, if an officer’s ability to lawfully use any force

is constrained to the narrow contours of Section 35.30, a police officer would have

no authority to make any degree of physical contact in the performance of a

plethora of non-arrest duties, such as patting down a suspect during a traffic stop,

stopping a distracted pedestrian from walking into oncoming traffic, or engaging

in basic crowd control on New Year’s Eve in a packed Times Square or at a large

demonstration. Thus, Tardif’s interpretation of New York law is not only contrary

to the relevant case authority, but also defies logic from a practical standpoint. See

Jones v. Parmley, 465 F.3d 46, 56-57 (2d Cir. 2006) (Sotomayor, J.) (“It is axiomatic,

for instance, that government officials may stop or disperse public demonstrations

or protests where ‘clear and present danger of riot, disorder, interference with

traffic upon the public streets, or other immediate threat to public safety, peace, or

order, appears.’” (quoting Cantwell v. Connecticut, 310 U.S. 296, 308 (1940))); see also

Edrei v. Maguire, 892 F.3d 525, 541-42 (2d Cir. 2018) (“Our sister circuits and district

courts in this Circuit have routinely applied excessive force principles to crowd

control situations. Training our focus on controlling authority, we see that this

Court has repeatedly emphasized that officers engaging with protesters must

39
comply with the same principles of proportionality attendant to any other use of

force.” (citations omitted)).

Accordingly, although neither of the two police encounters at issue on

March 21, 2012 involved Tardif’s arrest, we hold that the district court correctly

determined, under New York law, that the jury should be given an instruction

regarding justification in connection with Tardif’s assault and battery claims

involving Sergeants Mattera and McManus as it related to their alleged use of force

on that date.

C. The Justification Instruction

Tardif further argues that the justification instruction that the district court

provided to the jury on the assault and battery claims was erroneous because it

included a subjective element in the jury’s assessment of the reasonableness of the

officers’ use of force. We agree.

When charging the jury regarding the assault and battery claims prior to the

commencement of deliberations, the district court instructed that assault is “the

intentional placing of another person in fear of imminent harmful or offensive

conduct,” and that battery occurs when a person “intentionally touches another

person without that person’s consent and thereby causes an offensive bodily

40
contact.” App’x at 1076-77. The district court explained that, when an alleged

assault or battery occurred during a lawful arrest, a plaintiff must prove that the

police conduct or use of force was “unreasonabl[e] under the circumstances.” Id.

at 1077; see also id. at 1078 (“If the alleged battery occurred during a lawful arrest,

plaintiff must also prove that the officers’ use of force was unreasonable in light of

the circumstances.”). The district court further instructed—over Tardif’s

objection—that, in determining whether the officers “acted unreasonably under

the circumstances,” the jury “may consider the need for the application of force,

the relationship between the need and the amount of force that was used, the

extent of any injury inflicted, and whether force was applied in a good faith effort

to maintain or restore discipline, or maliciously for the very purpose of causing

harm.” Id. at 1077 (instruction concerning assault); see also id. 1078 (same with

respect to battery). The district court failed to provide additional instructions

regarding assault and battery claims in a non-arrest context.

On the morning the deliberations began, the jury sent a note, requesting to

view all video evidence involving Sergeant Mattera at standard speed and in slow

motion, and asking whether there is “anything unique about a police [officer]

carrying out a law enforcement function (but not a lawful arrest) that should be

41
considered when assessing an assault and battery claim.” Id. at 1203. The district

court—again over Tardif’s objection—responded with a supplemental instruction

that repeated the initial charge that was given for an arrest situation:

The answer to your question is that because police have the obligation
to maintain the public peace and to keep individuals safe, you can
determine whether they acted reasonably, and in determining that . . .
you may consider the need for the application of force, the
relationship between the need and the amount of force that was used,
the extent of any injury inflicted, whether the force was applied in
good faith—in a good faith effort to maintain or restore discipline—
or maliciously for the very purpose of causing harm.

Id. at 1105. The district court’s instruction was based upon our decision in Johnson

v. Glick, 481 F.2d 1028 (2d Cir. 1973), partially rejected by Graham v. Connor, 490 U.S.

386 (1989), where we addressed the relevant factors for a Fourteenth Amendment-

based excessive force analysis for pretrial detainees.

We conclude, as the City concedes, that the subjective intent language in the

initial instruction, as well as in the supplemental instruction, was erroneous. It is

well settled under New York law, with respect to assault and battery claims, that

the use of force by a police officer is analyzed “under the Fourth Amendment and

its standard of objective reasonableness.” Hernandez v. Denny’s Corp., 114 N.Y.S.3d

147, 151 (4th Dep’t 2019) (internal quotation marks omitted); accord Harris, 62

N.Y.S.3d at 414. Thus, New York law is consistent with the Supreme Court’s

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Fourth Amendment jurisprudence, as set forth in Graham, which explicitly rejected

the argument that the use of Glick’s “malicious and sadistic” factor is “merely

another way of describing conduct that is objectively unreasonable under the

circumstances.” 490 U.S. at 397. The Graham Court explained that “[w]hatever the

empirical correlations between ‘malicious and sadistic’ behavior and objective

unreasonableness may be, the fact remains that the ‘malicious and sadistic’ factor

puts in issue the subjective motivations of the individual officers, which our prior

cases make clear has no bearing on whether a particular seizure is ‘unreasonable’

under the Fourth Amendment.” Id. Thus, the Court emphasized that “[t]he

Fourth Amendment inquiry is one of ‘objective reasonableness’ under the

circumstances, and subjective concepts like ‘malice’ and ‘sadism’ have no proper

place in that inquiry.” Id. at 399; accord Heath, 854 F.2d at 9 (“There is no room for

consideration of the officer’s motives or intent under this standard . . . and no

requirement that an officer have acted with an improper motive in order to have

acted unreasonably.”). 16

16We also note that, even with respect to excessive force claims under the Fourteenth
Amendment (from which the Glick framework derived), the Supreme Court has limited
the application of the Glick factors and clarified the applicable standard for such claims
brought by pretrial detainees. More specifically, in Kingsley v. Hendrickson, although
noting that the fourth Glick factor (i.e., a malicious and sadistic purpose to cause harm)
“might help show that the use of force was excessive,” 576 U.S. 389, 402 (2015), the
43
 In short, the jury should not have been told that, in assessing the

reasonableness of the police officer’s use of force, they could consider “whether

the force was applied in good faith—in a good faith effort to maintain or restore

discipline—or maliciously for the very purpose of causing harm.” App’x at 1105

(supplemental jury instruction); see also id. at 1077-78 (initial jury instruction).

Once it is demonstrated that an individual police officer intended to use force of

some kind, the subjective motivations of that officer simply have no bearing on

whether the particular degree of force used is unreasonable and excessive under

the Fourth Amendment or New York law. Accordingly, because the district

court’s initial instruction and supplemental instruction on the assault and battery

claims incorporated a subjective element, those instructions were erroneous.

C. Harmless Error Analysis

Although conceding that the district court incorrectly charged the jury on

the officers’ subjective intent, the City argues that Tardif has failed to demonstrate

sufficient prejudice warranting a new trial on her assault and battery claims. We

Supreme Court emphasized that “the appropriate standard for a pretrial detainee’s
excessive force claim is solely an objective one,” id. at 397; see also Edrei, 892 F.3d at 537
(describing Kingsley’s “new formulation” of an excessive force claim under the
Fourteenth Amendment as “a modest refinement of Glick’s four-factor test” because “our
own precedents . . . have repeatedly assessed excessive force claims without looking to
subjective intent”).
44
hold that the charging error prejudiced Tardif’s assault and battery claims

involving Sergeant Mattera (as asserted against the City), but that the error was

harmless as to her claim against Sergeant McManus, as well as the corresponding

respondeat superior claim against the City.

An erroneous instruction requires a new trial if we find that the error is not

harmless. See Uzoukwu v. City of New York, 805 F.3d 409, 418 (2d Cir. 2015). Error

in a jury instruction is not harmless “when an appellant can show that the

instructions considered as a whole prejudiced [her].” Holzapfel v. Town of

Newburgh, 145 F.3d 516, 521 (2d Cir. 1998); see also Cobb v. Pozzi, 363 F.3d 89, 118

(2d Cir. 2003) (erroneous instruction not harmless when “th[e] evidence could

support a jury’s reaching the opposite conclusion” had it been instructed

correctly).

With respect to Sergeant Mattera, there are several factors that collectively

preclude us from finding that the erroneous instruction was harmless. As a

threshold matter, this is not a situation where the jury was initially provided with

a correct instruction, and the district court then misspoke in re-stating the law at

some other juncture in the charge. The jury was given the erroneous instruction

on subjective intent during the initial charge when the elements of the assault and

45
battery claims were set forth, and that same erroneous instruction was reiterated

in response to a jury note. Thus, the jury was never provided with the correct

instruction on those claims. The City points to a portion of the initial charge where

the district court discussed how the plaintiff must show that “any force used was

objectively unreasonable” and “without regard to his underlying intention or

motivation.” App’x at 1069. Importantly, however, that instruction related to the

excessive force claim under Section 1983 against Sergeant McManus. We have no

reason to believe that the jury would have assumed that such language would

apply to a different defendant on different claims, especially where the actual

instruction on the assault and battery claims not only omitted the critical language

as it relates to this issue (that is, “objectively” and “without regard to his

underlying intention or motivation”) but also affirmatively told them that good

faith did apply to those claims. See, e.g., Hudson v. New York City, 271 F.3d 62, 69-

70 (2d Cir. 2001) (holding that, even though the district court referenced “objective

reasonableness” at some point in its instruction, it did not cure the defect caused

by earlier reference to defendant’s intent because it made it “confusing as to

whether intent to do wrong was required to find a violation of [plaintiff’s] Fourth

46
Amendment rights”). Therefore, we disagree with the City’s assessment that the

error in the instruction was “technical[]” or “minor.” Appellee’s Br. at 2, 18.

Moreover, we need not guess as to whether the jury was focused upon this

particular instruction during their deliberations as it relates to the assault and

battery claims involving Sergeant Mattera, because there was a note during

deliberations that makes that focus abundantly clear. As noted above, at around

10:20 a.m. on the first day of deliberations, the jury sent a note, requesting to view

all video evidence involving Sergeant Mattera at standard speed and in slow

motion, and asking whether there is “anything unique about a police [officer]

carrying out a law enforcement function (but not a lawful arrest) that should be

considered when assessing an assault and battery claim.” App’x at 1203.

Tellingly, because the initial charge only referenced the reasonableness standard

in the context of an arrest situation, the jury astutely sent this note asking what

standard applied when the officer used force in a non-arrest situation, as they were

simultaneously seeking to review evidence regarding Sergeant Mattera. In

response to that note, the district court again repeated the erroneous instruction,

thus advising the jury that the analysis included “whether the force was applied

in good faith—in a good faith effort to maintain or restore discipline—or

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maliciously for the very purpose of causing harm.” Id. at 1105. The district court

then replayed the requested videos for the jury. At around 2:15 p.m., after several

additional hours of deliberation, the jury again requested to review video

recordings of the incident with Sergeant Mattera and also requested to review

transcripts of both Sergeant Mattera’s and Tardif’s testimony regarding their

encounter. After viewing the video of the encounter with Sergeant Mattera

multiple times and conducting additional deliberations over the course of the next

ninety minutes, the jury reached a verdict in favor of the City and the individual

defendants. In short, the substance and timing of the note, in the overall context

of the jury’s undeniable focus on the evidence involving Sergeant Mattera,

together raise a substantial concern that the jury’s decision on the assault and

battery claims involving Sergeant Mattera may have been impacted by the

erroneous instruction. See, e.g., Heath, 854 F.2d at 8-9 (new trial required where the

district court gave an instruction when initially charging the jury, and again when

receiving a note, erroneously stating that a finding of malice was required for

plaintiff to prove the officer’s unreasonable use of deadly force).

The receipt of the note and the potential effect of the erroneous instruction

are further magnified by the nature of the proof that the jury was considering as

48
to Sergeant Mattera’s conduct, which could have naturally placed his intent at the

forefront of the jury’s discussions. Although the parties provided different

accounts regarding the lead-up to Sergeant Mattera’s grabbing of Tardif, Sergeant

Mattera admitted that he “grabbed” Tardif, “pull[ed] her off to the side,” which

caused her body to “twist[] around,” and that he then “lost grip of her and she fell

down.” App’x at 781, 797. A frame-by-frame video recording of the incident,

although evolving rapidly, also shows Sergeant Mattera grabbed her. However, a

significant portion of Sergeant Mattera’s testimony related to his motivations and

good faith, thereby implicating the erroneous instruction. For example, Sergeant

Mattera testified that Tardif suddenly appeared in his field of vision and it looked

like she was about to run into the back of another police officer. To “prevent the

situation from further escalating,” he “instinctively” used force against her in

order to prevent a possible collision. Id. at 801. Sergeant Mattera further stated

that he did not intend for Tardif to fall to the ground and that he was unable to

break her fall. He also testified that he believed that he had used “the minimal

amount of force that [he] needed to use.” 17 Id. at 803.

17Although the City’s summation primarily focused on the reasonableness of the officers’
conduct without reference to mental state, we note that there was a reference in the
summation to the officers not being “these cruel, violent monsters” as plaintiff implied,
id. at 1050-51, which also could have, in combination with Sergeant Mattera’s testimony
49
 Given Sergeant Mattera’s testimony, even if the jury credited Tardif’s and

Daniel Shockley’s testimony and found that the degree of force employed by

Sergeant Mattera was excessive under the circumstances, they could have also

credited Sergeant Mattera’s testimony and concluded that he had no bad motive

in using the excessive force. Such findings, if considered in the context of the

erroneous instruction, could have led the jury to find in Sergeant Mattera’s favor

because, even though he applied objectively unreasonable force, he did so “in a

good faith effort to maintain or restore discipline” and not “maliciously for the

very purpose of causing harm.” Id. at 1105 (supplemental jury instruction). That

verdict, if based on those findings and the erroneous instruction, would have been

contrary to New York law and thus prejudiced Tardif. See Dancy v. McGinley, 843

F.3d 93, 119-20 (2d Cir. 2016) (holding that erroneous instruction that allowed

consideration of subjective intent of the police officer was not harmless because

“[u]nder the district court’s instruction, the jury could have concluded that there

was no violation because [the officer] did not intend to use enough force to break

[plaintiff’s] jaw”); see also Callahan v. Wilson, 863 F.3d 144, 152 (2d Cir. 2017)

and the faulty instruction, erroneously (though perhaps inadvertently) further focused
the jury on the issues of subjective intent, such as good faith or malice. We further note
that the City’s summation was silent on whether the reasonableness standard was
objective or subjective.
50
(holding that erroneous instruction on the use of deadly force was not harmless

because it “allowed the jury to decide the case on different grounds than [the law]

permits”).

In reaching this decision, we recognize that it is also entirely possible that

the jury’s verdict in favor of the City on Sergeant Mattera’s conduct could have

been based upon a finding, entirely independent of his motive, that his use of force

was objectively reasonable under the circumstances. To find harmless error,

however, we must be “convinced that the error did not influence the jury’s

verdict.” Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000). That

standard has simply not been met as it relates to the assault and battery claims

pertaining to Sergeant Mattera when the erroneous instruction is considered, in

light of the substance of the jury note and the nature of the proof surrounding his

conduct. See Morse/Diesel, Inc. v. Trinity Indus., Inc., 67 F.3d 435, 439 (2d Cir. 1995)

(holding that charging error required retrial because “[w]e d[id] not know what

the jury would have done had it received a correct instruction”). Accordingly,

Tardif is entitled to a new trial on the respondeat superior claim against the City

based upon Sergeant Mattera’s alleged assault and battery.

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 With respect to the assault and battery claims against Sergeant McManus,

the focus of the evidence and issues were entirely different, and we thus find that

the district court’s charging error was clearly harmless. Unlike the testimony

regarding the force used by Sergeant Mattera, the jury was presented with no

evidence regarding Sergeant McManus’s subjective intent for using force because

he testified that he never used any force against Tardif. Sergeant McManus

testified that he first noticed Tardif when she was on the ground approximately

fifteen feet from him. He categorically and repeatedly denied having any physical

contact with Tardif. See, e.g., App’x at 827 (“Q. You didn’t shove her in her chest

while she was on crutches? A. No.”); id. at 833 (“Q. But it’s possible you made

contact with her, isn’t that right? A. No.”); id. at 837-38 (“Q. Would you push a

woman off of her crutches simply because she was asking you for the name of

another officer? A. Absolutely not.”).

To be sure, Tardif testified that Sergeant McManus came “through the

[police] line . . . and . . . pushed” her off of her crutches while she was attempting

to locate the officer from the incident earlier that morning. Id. at 905. However, if

the jury credited Tardif’s testimony, that gratuitous use of force would have been

unreasonable no matter what the circumstances. In fact, in the City’s summation,

52
Tardif’s testimony was summarized as claiming “for no reason at all Sergeant

McManus comes running out of the police line, his brow is furrowed, his skin is

blazing red, and he is filled with rage, and he pushes her off her crutches like some

villain from a Charles Dickens novel.” Id. at 1037-38. The City, in addition to

questioning Tardif’s credibility as to whether any officer did that at all, argued to

the jury (from the testimony and photos) that it could not have been Sergeant

McManus.

Therefore, even in the face of these starkly different versions of events, the

jury would have had no occasion under either version to consider whether

Sergeant McManus subjectively used force in good faith, and thereby rely on the

incorrect elements of the instruction. The only question—assuming the jury found

that a police officer had gratuitously pushed Tardif off of her crutches—would

have been whether Sergeant McManus was that officer or not. Given the limited

nature of the evidentiary dispute regarding the claims against Sergeant McManus,

we are confident that the erroneous instruction regarding subjective intent could

not possibly have influenced the jury’s verdict in Sergeant McManus’s favor on

those claims and, therefore, the error was harmless. See, e.g., Hill v. Kemp, 833 F.2d

927, 930 (11th Cir. 1987) (holding that erroneous instruction on intent was harmless

53
where alibi defense was asserted and there was no argument that a lack of intent

existed for the person who committed the offense); Hill v. Quigley, 784 F. App’x 16,

20 (2d Cir. 2019) (summary order) (holding that any error from reference to intent

in a use of lethal force instruction was harmless because “intent was not at issue at

trial”). Accordingly, no new trial is warranted as to the assault and battery claims

against Sergeant McManus and the respondeat superior claim against the City

related to his conduct based upon the erroneous instruction.

CONCLUSION

For the reasons stated, we AFFIRM the judgment of the district court as to

the ADA claim, as well as the assault and battery claims against Sergeant

McManus and the related respondeat superior claim against the City arising from

Sergeant McManus’s alleged conduct, but VACATE the judgment as to the

respondeat superior claim against the City relating to Sergeant Mattera’s alleged

assault and battery, and REMAND the case for further proceedings consistent

with this opinion.

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