Zellner v. Summerlin

05-6309-cv
Zellner v. Summerlin
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
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August Term, 2006 4
(Argued: February 23, 2007 Decided: July 20, 2007) 5
6
Docket No. 05-6309-cv 7
_________________________________________________________ 8
JOHN ROBERT ZELLNER, 9
Plaintiff-Appellant, 10
- v. - 11
ROBERT G. SUMMERLIN, TROOPER, and MAJOR WEBER, 12
Defendants-Appellees, 13
STATE OF NEW YORK, NEW YORK STATE POLICE DEPARTMENT, 14
and JOHN DOES 1-10, 15
Defendants. 16
_________________________________________________________ 17
Before: KEARSE, CABRANES, and KATZMANN, Circuit Judges. 18
Appeal from a judgment of the United States District Court 19
for the Eastern District of New York, Sandra L. Townes, Judge, (1) 20
granting judgment as a matter of law in favor of defendants- 21
appellees on plaintiff's false arrest and malicious prosecution 22
claims, following a jury verdict in plaintiff's favor on those 23
claims, and (2) denying plaintiff's motion for a new trial on his 24
excessive force claim following a jury verdict in defendants' favor 25
on that claim. See 399 F.Supp.2d 154 (2005). 26
Reversed in part and remanded; affirmed in part. 27

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SCOTT A. KORENBAUM, New York, New York 1
(Frederick K. Brewington, Hempstead, New York, 2
on the brief), for Plaintiff-Appellant. 3
RICHARD DEARING, Assistant Solicitor General, 4
New York, New York (Eliot Spitzer, Attorney 5
General of the State of New York, Michael S. 6
Belohlavek, Senior Counsel, Mariya S. Treisman, 7
Assistant Solicitor General, Charleen Hsuan, 8
Legal Intern, New York, New York, on the 9
brief), for Defendants-Appellees. 10
KEARSE, Circuit Judge: 11
Plaintiff John Robert Zellner appeals from a final 12
judgment of the United States District Court for the Eastern 13
District of New York, Sandra L. Townes, Judge, dismissing his 14
claims, brought under 42 U.S.C. § 1983, against defendants Robert G. 15
Summerlin and Thomas Weber (collectively "defendants"), as members 16
of the New York State Police ("State Police"), for false arrest, 17
malicious prosecution, and use of excessive force during arrest. 18
Following jury verdicts awarding Zellner a total of $85,500 in 19
compensatory and punitive damages on the false arrest and malicious 20
prosecution claims, the district court granted defendants' motion 21
pursuant to Fed. R. Civ. P. 50(b) for judgment as a matter of law 22
dismissing those claims on the ground of qualified immunity. On 23
appeal, Zellner contends principally that, in granting judgment as 24
a matter of law, the district court impermissibly decided questions 25
of fact. He also contends that the jury's verdict in favor of 26
defendants on his excessive force claim should have been set aside, 27
and a new trial granted on that claim. Because we conclude that, in 28
granting judgment as a matter of law, the district court erred by 29
making factual findings adversely to Zellner, rather than viewing 30

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the record in the light most favorable to him, we reverse so much of 1
the judgment as dismissed Zellner's false arrest and malicious 2
prosecution claims; we remand for entry of an amended judgment 3
reinstating the jury's awards of compensatory and punitive damages 4
on those claims. We affirm so much of the judgment as dismissed the 5
excessive force claim. 6
I. BACKGROUND 7
The present action arises out of a February 25, 2000 8
demonstration protesting the construction of a new housing 9
development called Parrish Pond, across a highway from the 10
Shinnecock Indian Reservation ("Shinnecock Reservation" or 11
"Reservation") in the Town of Southampton, New York (the "Town"). 12
Photographs introduced at trial as plaintiff's exhibits ("PX") 13
showed demonstrators holding placards stating, e.g., "Sacred Land," 14
"Indian Land Forever," and "Stop the Desecration." 15
Zellner, a sixty-odd-year-old adjunct professor of 16
American history at Southampton College, served as co-chair of the 17
Southampton Anti-Bias Task Force, a committee of citizens appointed 18
by the Town to investigate complaints of bias and discrimination. 19
He was called to the site of the demonstration by Benjamin Haile, a 20
Shinnecock Reservation resident. 21
The scene of the demonstration was a field area 22
surrounding a grass-and-dirt driveway leading from a paved two-way 23
public road to the Parrish Pond development construction site. 24
Troopers from the State Police were present; Weber, a major, was in 25

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charge. During the demonstration, a construction-related truck 1
attempted to enter the driveway and was temporarily blocked by some 2
of the protestors. Zellner was arrested and charged with disorderly 3
conduct in violation of N.Y. Penal Law ("Penal Law") § 240.20(5) 4
(McKinney 2000), and resisting arrest, in violation of N.Y. Penal 5
Law § 205.30 (McKinney 1999). More than a year later, after over a 6
dozen court appearances and adjournments, the charges against him 7
were dismissed for lack of prosecution. 8
A. The Present Action 9
Zellner brought the present § 1983 action in 2002, 10
alleging, to the extent pertinent here, claims of false arrest, 11
malicious prosecution, and use of excessive force during arrest. A 12
trial was held on those claims against Major Weber and Trooper 13
Summerlin (other claims and defendants having been dismissed 14
earlier). The trial produced sharply divergent versions of the 15
events leading to Zellner's arrest. The witnesses included Zellner 16
and several residents of the Shinnecock Reservation who supported 17
his version, and Major Weber, Trooper Summerlin, and several other 18
troopers who supported key elements of defendants' version. In 19
addition, a videotape, produced by a camera that had been mounted on 20
one of the State Police vehicles, was played. 21

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1. Testimony by Zellner and Reverend Davis 1
Early on the morning of February 25, 2000, Zellner 2
received a call at home from Haile, asking him to "look at a 3
situation on St. Andrew's Road, just off the reservation." (Trial 4
Transcript ("Tr.") at 340.) Zellner responded that he was involved 5
in a project; he suggested that Haile instead call the other co- 6
chair of the Anti-Bias Task Force, but that if Haile were unable to 7
find someone else to help he should call Zellner again. Eventually 8
Haile called Zellner back, stating "we need you." (Tr. 341.) 9
Zellner arrived at the demonstration site on St. Andrew's 10
Road sometime after noon and was greeted by Reverend Holly Davis, a 11
pastor at two area Presbyterian churches, who introduced him to some 12
of the protestors. For about a half-hour, Zellner received 13
information about the situation from some of the Shinnecock elders 14
and from Reverend Davis, learning that the Shinnecocks had sought 15
and been granted a temporary injunction against the construction 16
work and that a written restraining order was on the way. Reverend 17
Davis had been engaged in discussions with Major Weber most of the 18
day (see id. at 47-48, 49; see also id. at 94 (testimony of Weber: 19
"The Reverend Davis was telling me all afternoon that the paperwork 20
was being signed, that it was coming. I wanted the injunction order 21
to cease work to arrive so I could calm things down."). After 22
Zellner arrived, Davis, accompanied by a few others including a 23
79-year-old woman who was a Shinnecock elder, introduced Zellner to 24
Major Weber. (See id. at 49, 344.) 25
Zellner and Weber shook hands, and Zellner identified 26
himself as co-chair of the Anti-Bias Task Force. Zellner described 27

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his ensuing conversation with Major Weber--and the arrest--as 1
follows: 2
I explained that I had been called and asked to come 3
down and talk to the police and--in an effort to 4
keep things calm. 5
Q. And, sir, did he respond to you at that 6
point? 7
A. He did. He said, what--he asked me what 8
business was it of mine, and I said--I reiterated I 9
was co-chair of the Anti-Bias Task Force and that I 10
was asked by the community to make sure that he knew 11
that there was a restraining order against the work 12
going on in that area and that the--that I 13
understood that the restraining order was on the way 14
and would they be able to wait before they took any 15
action until the restraining order got there. 16
Q. At that point, sir, what was your demeanor? 17
Can you describe that for the jury. 18
A. My demeanor was very respectful. It was 19
quiet because everybody there was very solemn and 20
respectful and quiet. 21
Q. And, sir, what next happened, please. 22
A. Major Weber indicated that he knew that 23
there was a restraining order and he said it's not 24
here yet, and I said, I understand it's not here, 25
but I just wanted to make sure that you know it's on 26
the way, and what we're concerned about is that 27
there's an evenhanded treatment of everyone in this 28
situation. 29
Q. Did he respond to you at that point? 30
A. Well, he didn't, and I said, [c]ould you 31
assure me that there will be evenhanded treatment? 32
And he said, with some excitement, that we had to 33
keep the road open, and I had observed that the road 34
was--the traffic was moving back and forth on the 35
road, and I said, [i]t seems that everything is 36
reasonable at this moment. 37
Q. Then what happened? 38
A. With that--while I was literally speaking 39
to the major, just a few seconds after we had 40
actually shaken hands, I was grabbed from behind and 41

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pushed down and pulled backwards out of in front of 1
the major. 2
Q. And at that time, sir, did you [have] 3
anything in your hands? 4
A. I had--still had a coffee cup. I think I 5
had put it down at some point, but I had picked it 6
back up. I had a coffee cup in my hand, as I 7
recall. That's the only thing I had in my hand. 8
Q. And, sir, at the point that you were 9
pulled, as you indicated, what next happened? 10
A. I was very roughly pulled out and my arm 11
was placed behind my back and my arm was twisted 12
extremely painfully and I looked over my right 13
shoulder and I said, "You're breaking my arm. 14
Please don't break my arm." 15
. . . . 16
Q. Now, sir, at that point that you said that, 17
was there any response to your statement? 18
A. Yes. 19
Q. What was the response? 20
A. The response was a much more severe 21
twisting of my arm and the words, "Resisting are 22
you?" And I said, "No. You're breaking my arm, 23
please don't break my arm." 24
(Tr. 344-46 (emphasis added); see also id. at 380 ("I was face-to- 25
face with Major Weber and I was grabbed from behind, pulled 26
backwards and down.").) 27
Zellner testified that his right arm was held at the elbow 28
while his wrist was being "turned in the way that [his] arm didn't 29
turn," and he could feel the cartilage or tendons cracking. (Id. at 30
349.) He stated that he was also kicked or kneed in the jaw and 31
that his left knee was either kicked or stepped on. (See id. at 32
350.) Zellner later learned that one of the troopers who had 33
grabbed him from behind was Summerlin. (See id. at 346.) 34

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Zellner testified that before being grabbed, he "was not 1
asked to do anything" and "was not ordered to do anything." (Id. at 2
453; see also id. at 381.) He "was simply grabbed from behind," 3
without any idea of why or by whom, and was not even "told that [he] 4
was under arrest." (Id.) Zellner testified that he "didn't give 5
any resistance except verbally asking them not to injure [his] arm 6
further." (Id. at 351.) 7
Reverend Davis testified that after she introduced Zellner 8
to Major Weber, she was never more than 10 feet from Zellner before 9
he was taken away by the troopers. (See Tr. 71, 79.) She testified 10
that before Zellner was grabbed by the troopers, she did not hear 11
any of the troopers give him an order. (See id. at 80.) As she and 12
Zellner and the others were all "standing there" (id. at 50), "they 13
grabbed Bob[;] . . . I called it an attack in my deposition, and 14
down on the ground he was" (id. at 51). 15
2. The Testimony of Major Weber 16
Major Weber testified that he had been informed by 17
Reverend Davis on February 25 that an injunction order was being 18
signed, ordering the cessation of construction work at the site. 19
When Zellner arrived, Weber "was waiting for the injunction to 20
arrive so we could put things to rest." (Tr. 94.) Weber and 21
Zellner shook hands, and Weber "said to Mr. Zellner, are you the 22
lawyer. He said yes." (Id.) 23
Q. When he said yes, . . . what is the next 24
thing that you say happened? 25
A. I said to him, where is the paperwork. 26

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Q. Did he respond to you? 1
A. Yes. 2
Q. What did he say? 3
A. He said you keep these--keep this truck out 4
of here even without the paperwork. 5
(Id. at 95.) 6
Major Weber testified that when he proceeded to inform 7
Zellner that trucks were coming in to refuel on-site equipment and 8
instructed one of the troopers to let the arriving truck enter, 9
Zellner sat down on the ground. (See, e.g., id. at 133-34, 176.) 10
Weber stated that at first he thought Zellner had had a heart 11
attack, but Zellner then yelled for everyone else to sit down as 12
well. (See, e.g., id. at 135, 176.) Weber testified that he was no 13
more than six or eight inches from Zellner at the time, and he 14
described the event as follows: 15
Q. When you were standing that distance from 16
Mr. Zellner, could you describe for the jury how you 17
claim he sat down? 18
A. I shook hands with Mr. Zellner. He 19
introduced himself. I said, are you the lawyer. 20
Mr. Zellner replied, either yes or yeah. I said, 21
where is the paperwork, meaning the injunction. He 22
started saying that you should keep these trucks out 23
without the paperwork. 24
. . . . 25
I explained to Mr. Zellner that the truck was 26
coming in to refuel equipment so they could leave. 27
They already stopped the work. They wanted to leave 28
the scene to go to other projects for the next 29
thirty days, construction projects. They needed 30
some of their equipment. Their purpose was to gas 31
the equipment and leave. 32
With that, Mr. Zellner again said to me, you 33
should keep the trucks out. I was confused. The 34
trucks were going to move out in ten or fifteen 35

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minutes. 1
With that I said to him, the trucks are coming 2
in and they [sic] are coming in now. And I told my 3
captain . . . [to] get these trucks [sic] in because 4
the trucks [sic] created a danger to the children 5
that were at the scene. [The captain] proceeded to 6
try to get the trucks [sic] in. 7
With that, Mr. Zellner dropped to the ground 8
right in front of me. 9
Q. Okay. Sir, can you describe how Mr. 10
Zellner dropped to the ground? 11
A. Mr. Zellner proceeded down. While 12
attempting to sit down he stated, everybody down, 13
everybody down. Then he either went down on his 14
backside or on his ankles. 15
Q. Sir, when you say either went down on his 16
backside or his ankles, [you] were standing six 17
inches from him? 18
A. Yes. 19
Q. So which was it? 20
A. Either his rectum or his ankles. I am not 21
sure. 22
Q. Sir, he didn't-- 23
A. This happened in a split second. 24
Q. He didn't sit on his rectum, did he? 25
A. Either sat on his backside or his ankles. 26
Q. Sir, when this happened, that being Mr. 27
Zellner allegedly sitting down on his ankles or his 28
backside, as you indicated, were there other 29
officers standing right behind Mr. Zellner? 30
A. I don't know. 31
Q. Take a look at the picture, sir. Did their 32
position change any? You are looking at [PX] 19-A, 33
right? 34
A. This picture doesn't tell me that Mr. 35
Zellner is going to sit down. He's standing up. 36

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. . . . 1
Q. Was the position of the officers with 2
regard to Mr. Zellner different from the point at 3
which [PX] 19-A depicts and the point at which Mr. 4
Zellner sat down on his ankles or his backside? 5
A. At the time, when Mr. Zellner dropped, I 6
didn't notice any troopers around him. Nor was I 7
looking for any troopers around him. I was 8
concerned with Mr. Zellner sitting down because at 9
first I thought he was sick. Something was 10
happening right in front of me. He was going down. 11
I was unsure what it was until he stated everybody 12
down, everybody down. Then I knew I had a problem. 13
(Tr. 133-36.) 14
Q. Up to this point that he began dropping, 15
how long had your conversation with the plaintiff 16
lasted? 17
A. Twenty, thirty seconds. 18
Q. When he began dropping, what was your 19
reaction? 20
Did you think you had probable cause of any-- 21
for an arrest of any kind? 22
A. No . . . . 23
. . . . 24
Q. Did he say anything when he was sitting 25
down? 26
A. No. 27
I thought when he started going down, this had 28
never happened to me before, I thought I had 29
somebody sick on my--I thought I had a heart attack 30
on my hands. He started going down. Okay. Then 31
when he started yelling, everybody down, everybody 32
down, I knew I had what we call "passive 33
resistance." He was going to sit down and try to 34
block traffic and he was going to try to get the 35
twenty, thirty, forty other demonstrators to follow 36
his lead, and I knew I had a problem. I had women 37
and children. If they started squatting in front of 38
that pickup truck, and tribal members or 39
demonstrators started gathering on that pickup 40
truck-- 41

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. . . . 1
. . . I knew I had a problem. If that operator 2
attempted that left-hand turn, people would have 3
been hurt. 4
Q. How many times did the plaintiff yell 5
"everybody down"? 6
A. I believe, two times. Maybe three. 7
Q. Did you see anyone else sit down? 8
A. No. 9
Q. What did you do when the plaintiff sat down 10
and said "everybody down"? 11
A. I knew I had to get him. I had two 12
objectives at that point. Get him away from the 13
scene and get the trucks [sic] inside the driveway, 14
to defuse the situation. 15
Q. Did you say anything to the plaintiff when 16
he sat down? 17
A. I grabbed him underneath--I believe--his 18
right armpit with my left arm. I said get up. 19
Q. Did he get up? 20
A. No. 21
Q. What, if anything, was the crowd doing at 22
that point? 23
A. I heard the crowd behind me, yelling and 24
screaming. 25
. . . . 26
Q. . . . . What did you do at that point? 27
A. When Mr. Zellner wouldn't get up, I looked 28
up and I saw two or three troopers there and I said, 29
get him out of here, dis con, which is disorderly 30
conduct. 31
(Tr. 176-78.) 32
At his deposition some 10 months before trial, Major Weber 33
had been asked what Zellner had done that constituted disorderly 34

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conduct. Weber's answer had then been: "He sat down on a driveway 1
in a paved portion of the road, I don't know exactly where, for the 2
purposes of obstructing vehicle traffic, and I determined that was 3
disorderly conduct . . . ." (Tr. 144 (internal quotation marks 4
omitted).) 5
3. The Testimony of Other Troopers 6
Summerlin testified that after "someone came running down 7
the road wa[]ving their cell phone and stating that they had 8
received a court order" (Tr. 691), Zellner "was yelling at the 9
Major, pointing his finger[,] saying you should wait for the court 10
order, you should wait for the court order" (id. at 693-94). At the 11
time, Summerlin testified, Major Weber was trying, in a professional 12
and businesslike manner, to explain that the truck was entering 13
solely to refuel an on-site vehicle, and that the project was 14
shutting down. (See id. at 694.) 15
Q. After Major Weber explained why the truck 16
was attempting to enter and the plaintiff [was] 17
yelling at Major Weber and pointing at him, what 18
happened next? 19
A. At some point in time all I can remember is 20
that as I was looking out I heard someone say 21
everybody down, Mr. Zellner fell down to his knees 22
and folded his legs scissor fashion. 23
Q. Where were you in relation to this? 24
A. I was standing on his left side. 25
Q. What happened after the plaintiff dropped 26
to the ground and said everybody down? 27
A. I had turned to look off towards my left 28
and I could hear the Major say get up. 29
Q. Did the plaintiff get up when the major 30

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said that? 1
A. No, he left his hands, he had his legs 2
scissor fashion and his hands were on his knees and 3
his head was down. 4
Q. After the Major asked the plaintiff to get 5
up, what happened? 6
A. The major looked towards me and Trooper 7
Parker and said get him out of here dis con. 8
Q. Get him out of here dis con, what did you 9
understand that to mean? 10
A. That he was under arrest. 11
Q. What was he under arrest for at that time? 12
A. Disorderly conduct. 13
(Tr. 695.) 14
Trooper Kevin Drew testified that he was standing "right 15
next" to Zellner, when Zellner "all of a sudden shout[ed] . . . he 16
wanted everybody to sit down." (Id. at 665.) 17
Q. After he shouted for everybody to sit down, 18
what did he do? 19
A. He sat down and nobody else did. 20
Q. Where were you when this took place? 21
A. I was behind him, just maybe four to five 22
feet away. 23
Q. What did you do after he sat down? 24
A. After he sat down, I observed the Major 25
come over and talk to him about getting up and 26
moving and . . . Troopers Parker and Summerlin came 27
over too and were negotiating with him to move and 28
about letting the truck in. 29
(Id.) Drew's written reports of the incident did not state that 30
Zellner had shouted for others to sit down. (See id. at 682-83.) 31
Trooper Derrick Parker testified that as Major Weber was 32

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in the driveway telling people to "let the truck come through so it 1
could fuel up" (Tr. 630), Zellner, who was sipping coffee from a cup 2
in his hand (see id. at 646), "was standing right in front of Major 3
Weber and he was saying something back to Major Weber, Major Weber 4
was asking him to move from the driveway" (id. at 630-31). 5
Q. What happened after that if you remember? 6
A. Mr. Zellner said something, he just dropped 7
to the ground. 8
Q. When you say dropped to the ground, did 9
anything that you said cause him to drop to the 10
ground? 11
A. No. 12
Q. Did anybody hit him or was he in contact 13
with anybody when he dropped to the ground? 14
A. No, he just dropped to the ground and sat 15
down. 16
Q. Would you describe how he dropped to the 17
ground, did he go backwards, to the left or right, 18
straight down? 19
A. Straight down to the ground. 20
Q. Is there any way further that you could 21
describe how he went to the ground? 22
A. No other way, he just dropped straight down 23
and sat down on his butt. 24
(Id. at 631.) 25
Q. Sir, you said that Mr. Zellner went down on 26
his butt, correct? 27
A. Yes. 28
Q. He didn't go down on his knees, right? 29
A. No. 30
Q. And you were standing right behind him, you 31
would have seen that, right? 32

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A. Yes. 1
(Id. at 655-56.) 2
Q. Do you remember where Major Weber was? 3
A. Yes, he was in the driveway, the middle of 4
the driveway, talking to Mr. Zellner. 5
(Id. at 632.) 6
Parker, who was "standing right behind" Zellner (id. at 7
656), slightly to his right (see, e.g., id. at 631-32, PX 19A, 8
PX 19D), did not hear Zellner yell anything to the crowd: 9
Q. Now, when Mr. Zellner went down, you said 10
nobody said anything to him at that point, is that 11
correct-- 12
Did you say anything to him? 13
A. No. 14
Q. Did anybody else say anything to him? 15
A. No. 16
Q. Did you hear Mr. Zellner say anything? 17
A. I didn't hear him say anything . . . . 18
(Tr. 652.) 19
Trooper Michael Lewis testified that he saw Zellner and 20
Major Weber talking. He could not hear the conversation, but said 21
he saw Zellner sit down: 22
Q. After the truck began to attempt to enter 23
the driveway, and the people moved in front of it, 24
and Major Weber was talking, what happened next? 25
A. Around that time I observed the plaintiff 26
move into the center of the driveway, and then he 27
sat down after having a discussion with Major Weber, 28
which I could not hear, he sat down. 29
Q. At the time that he sat down, were any 30
troopers in contact with him at that time? 31

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A. No. 1
Q. Where specifically did he sit down; in the 2
road, the driveway or somewhere else? 3
A. Right in the middle of the driveway. 4
Q. After he sat down, what else did you 5
observe with regard to the plaintiff at that time? 6
A. I observed Troopers Parker and Summerlin 7
lift him and attempt to remove him from the scene. 8
(Tr. 743-44.) 9
Lewis, who did not testify that Zellner yelled anything to 10
the crowd, wrote a memorandum on the incident, which did not 11
indicate even that Zellner sat down. At no time did Lewis ever 12
report to anyone in writing that he saw Zellner sit down. (See id. 13
at 759-61.) 14
4. Testimony by Non-Troopers 15
Zellner denied that he had sat down at the scene of the 16
demonstration and denied that he had urged anyone else to do so. He 17
said that he had not seen the truck that was attempting to turn into 18
the property, and that he was not even aware that there was a 19
driveway. (See Tr. 392-93.) Asked to describe what his "voice 20
level" had been "at any time before being grabbed" (id. at 348), 21
Zellner testified: 22
A. My voice level was conversational and quiet 23
and respectful. 24
Q. And, sir, at the time that you were 25
grabbed, did you make or yell any statements to the 26
crowd? 27
A. No, I did not. 28
Q. Sir, at any point did you sit down? 29

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A. No, I did not. 1
(Id. at 348-49; see also id. at 380 ("I never did sit down"; "I 2
didn't sit down.").) Zellner testified that he did not at any point 3
yell to the crowd (see id. at 376) and never yelled "everybody down" 4
(id. at 381). 5
Reverend Davis, who stood no more than 10 feet away from 6
Zellner after she introduced him to Major Weber, testified that she 7
never heard Zellner raise his voice and never saw him attempt to sit 8
down: 9
Q. . . . . [T]ell us, please, at any point did 10
you make any observation of Mr. Zellner attempt to 11
try and prevent police from doing anything? 12
A. No, I did not observe that at all. 13
. . . . 14
Q. When, if at all, did you see Mr. Zellner 15
sit down? 16
A. I didn't see him sit down at all. 17
Q. At any point did you see him attempt to sit 18
down? 19
A. I did not see him try to sit down. 20
(Tr. 71.) 21
Q. And was there anything obscuring your view 22
of what you saw? 23
A. No. I saw him go down. 24
Q. And can you tell the jury, did you see-- 25
what if anything was it that made him go down? 26
A. Well, yes. I saw the troopers. I counted 27
4 troopers touching him. 28
Q. And at that time what was Mr. Zellner 29
doing? 30
A. Well, he had a cup of coffee in his hand, 31

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and so between the time that the troopers had hold 1
of him and he was drinking his coffee the last time 2
I had seen him, he wasn't doing anything. 3
Q. And at any point did you hear him say 4
anything, raise his voice or in any way shout 5
anything? 6
A. Oh, no, not at all. 7
(Tr. 58 (emphases added).) 8
Gordell Wright, a resident of the Shinnecock Reservation, 9
testified that he was just a few feet away from Zellner when he saw 10
two troopers grab Zellner's arms and throw him to the ground. (See 11
id. at 317-18.) When grabbed, Zellner was standing, doing 12
"[n]othing"; he was not seated. (Id. at 318.) Wright had not heard 13
Zellner say anything or yell anything to the crowd. (See id.) When 14
the troopers grabbed Zellner, they pushed him toward the ground and 15
he fell; Zellner did not resist arrest at all. (See id. at 328.) 16
Rebecca Genia, a resident of the Reservation who had been 17
at the demonstration site the entire day, testified that she did not 18
see Zellner (whom she had not previously met) sitting down and did 19
not hear him or anyone else urge everybody to sit down. She heard 20
a "ruckus" and saw Zellner on the ground. (Tr. 235.) She then saw 21
him being dragged past her, screaming about his arms (see id. at 22
237). 23
Q. At any time did you hear that individual 24
that you now know to be Robert Zellner say the words 25
"everybody down, everybody down"? 26
A. No. 27
Q. Did you ever hear those words on that day? 28
A. No. 29
. . . . 30

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Q. At any time when you were looking in th[e] 1
direction [of Zellner being dragged away], or 2
anytime before that, did you make any observation of 3
a man you now know to be Robert Zellner, Bob 4
Zellner, sitting down? 5
A. No. 6
(Tr. 237-38.) 7
Benjamin Haile, who had asked Zellner to come to the 8
demonstration site that morning, testified that he did not see the 9
incident involving Zellner but heard the scuffle. (See Tr. 259-60.) 10
At the time, Haile was in the driveway, some 10 feet away from the 11
road; the scuffle involving Zellner was behind him, farther into the 12
driveway. (See id. at 260.) 13
Q. At any point prior to hearing the scuffle 14
behind you, did you hear anyone say the words 15
"everybody down, everybody down"? 16
A. No. 17
Q. Anybody say that that day? 18
A. No. 19
(Id. at 262.) 20
Harriet Gumbs, a Shinnecock elder who was 79 at the time 21
of the demonstration, testified that she was standing next to 22
Zellner, close enough to touch him, when Zellner was grabbed by the 23
State troopers. (See id. at 305.) She testified that Zellner 24
neither sat down nor told anyone else to do so: 25
Q. At any point prior to that point, ma'am, 26
did you see Mr. Zellner sit down? 27
A. No, he did not. 28
Q. At any point during that day did you see 29
Mr. Zellner sit down-- 30
A. It was too cold to sit down. We were 31

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freezing out there. 1
(Tr. 304-05.) Asked what Zellner "was doing with his body" just 2
before he was grabbed, Gumbs testified that he was "standing," not 3
"sitting or anything else." (Id. at 306-07.) Nor did he yell 4
"everybody down": 5
Q. . . . . Prior to him being grabbed by the 6
troopers, did you hear him at any point say 7
"everybody down, everybody down"? 8
A. He never, ever said that. 9
Q. Did anybody ever say that there? 10
A. No one said it. 11
(Id. at 308.) 12
Gumbs testified that when the troopers grabbed Zellner, 13
they put his arms "behind his back, but they did not do it in a 14
gentle manner, they did it like they was trying to pull him apart, 15
take his arms off of him." (Id. at 305.) Then "[t]hey got him down 16
on the ground and they had his face almost buried in the ground. I 17
thought he was going to smother before they got up off him." (Id. 18
at 308.) 19
5. The Videotape and Photographs 20
The video camera did not record any part of Zellner's 21
interaction with Major Weber. It was located to the north of the 22
driveway and was pointed south at a short stretch of St. Andrew's 23
Road. The videotape shows sparse vehicular traffic on the road, 24
some pedestrian cross-traffic, and a congregation of people at the 25
west edge of the road, north of the driveway. The driveway itself-- 26
which still photographs show as no more than a somewhat beaten-down 27

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grass-and-dirt path leading through a field of brush and bushes 1
(see, e.g., PX 26C)--is not visible on the videotape. For some 10 2
minutes, according to the time-of-day display on the videotape, 3
Zellner is shown at the edge of the road talking to demonstrators; 4
a zoom shot during this period shows Zellner holding a coffee mug. 5
At 13:19:00, the videotape shows a pickup truck arriving, 6
signaling for a left turn into the Parrish Pond development. A 7
trooper goes into the road to the truck, which begins a left turn 8
but stops as people appear to congregate around it. At about the 9
same time Zellner walks away from the road and into another crowd of 10
people, away from the camera, moving closer to the driveway. The 11
videotape shows Zellner, partially obscured, bending forward from 12
the waist at 13:19:20, straightening up at 13:19:22, bending forward 13
again at 13:19:25, and straightening up again at 13:19:26. Zellner 14
then all but disappears into the crowd, and for most of the next 15
approximately four minutes, only his hat is visible on the tape. A 16
still photograph, PX 19A, which by all accounts depicts the scene 17
inside that crowd moments before Zellner began speaking with Major 18
Weber (see, e.g., Tr. 219, 317, 342, 648), shows Zellner (coffee mug 19
in hand) standing with Gumbs, Wright, and two other protestors, 20
surrounded by Summerlin, Parker, and two other (unidentified) 21
troopers. No one appears to be saying anything; Major Weber, his 22
side turned toward this group, is standing a few feet away from 23
Zellner. 24
At about 13:23 on the videotape, Zellner's hat disappears 25
from view, and he is not seen again on the tape for some 20-25 26
seconds. A still photograph, however, PX 19D, was taken in the 27

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- 23 -
interim. It shows Zellner tilted backward at about a 45-degree 1
angle, with Summerlin holding his left arm, Parker holding his right 2
arm, Drew with a hand on the back side of Zellner's jacket (see Tr. 3
678), and Major Weber leaning forward with his left arm 4
outstretched, his hand on Zellner's right shoulder (see, e.g., id. 5
at 404). The postures of Troopers Summerlin and Parker indicate 6
that they are pulling Zellner backwards. Major Weber testified that 7
PX 19D shows the troopers "escorting" Zellner away after he sat down 8
in the driveway. (Tr. 138, 187.) Zellner, in contrast, testified 9
that PX 19D shows "the exact moment when [he was] unexpectedly 10
pulled from behind" and taken to the ground. (Tr. 404.) Reverend 11
Davis similarly testified that, in PX 19D, "the[ troopers] were 12
pulling [Zellner] to the ground." (Tr. 68.) 13
At about 13:23:20, the videotape shows Zellner, upright 14
and walking, being brought out through the crowd by two troopers. 15
A subsequent still photo, PX 19C, shows Zellner prone, spread-eagle, 16
on the ground with Troopers Summerlin and Parker apparently cuffing 17
his hands behind his back, and Trooper Drew watching. 18
When Zellner was asked about the seven-second segment of 19
the videotape at 13:19:20-13:19:26, which showed him twice bending 20
forward at the waist, he testified that he had bent first to put his 21
coffee mug down in order to button his coat or tie its belt, and 22
then had bent again to retrieve the mug. (See Tr. 377-78.) Major 23
Weber, however, after having been shown that part of the videotape, 24
testified, "I'd like to call them practice runs" (id. at 118). 25
Q. I'm sorry, sir? 26
A. I like to call it a practice run. 27

-- 23 of 64 --

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(Id.) Shown that segment again, Weber testified that he viewed 1
Zellner as practicing sitting down and showing the demonstrators how 2
to sit down: 3
Q. Sir, we're at 13:19. The truck is there; 4
correct? 5
A. Yes. 6
Q. Mr. Zellner is still standing there? 7
A. Yes, he is. There he is. 8
Q. When you say--we're just at 13:19, and that 9
would have been 21 or 22 seconds. You're saying 10
that was a dry run? 11
A. I believe after seeing this video that was 12
a practice run on how to engage in passive 13
resistance, sitting down. 14
Q. Sir, when he leaned forward as though to go 15
to whatever in [sic] front of him, you're saying 16
that that is the equivalent of sitting down? 17
A. I believe-- 18
Q. Sir? 19
A. --that is the equivalent of sitting down. 20
Q. Very well. 21
A. Instructing the demonstrators how to sit 22
down. 23
(Id. at 120.) 24
The relevant part of the videotape had no sound, and hence 25
provided no evidence that anyone had shouted "everybody down." 26
Neither the videotape nor any of the still photographs showed 27
Zellner sitting. 28
B. The Rule 50(a) Motions and the Instructions to the Jury 29
Following the conclusion of Zellner's case, defendants 30

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moved pursuant to Fed. R. Civ. P. 50(a) for judgment as a matter of 1
law, arguing (a) that Zellner had failed to present evidence that 2
was legally sufficient to support his claims, and (b) that, in any 3
event, defendants were entitled to qualified immunity. The district 4
court denied the motion. It stated, inter alia, that the matter of 5
qualified immunity needed to be briefed by both sides. (See Tr. 6
532.) And the court stated that there were factual issues to be 7
decided by the jury: 8
This case comes down to factual issues, either the 9
jury believes that the plaintiff was attacked for no 10
reason, kicked and whatever, or they believe that he 11
jumped down on the driveway to obstruct traffic. 12
That is what the issue is going to be. 13
(Id. at 621.) After the close of all the evidence, defendants 14
renewed their Rule 50(a) motion. The court again denied the motion, 15
stating "[t]here are factual issues that have to be determined by a 16
jury." (Id. at 767.) 17
During the charging conference, at which the court and the 18
parties discussed the instructions and special-verdict questions to 19
be given to the jury, defendants requested yet again that the court 20
decide their qualified immunity defense as a matter of law: 21
MS. LEAHEY [defendants' counsel]: Your Honor, 22
as to the qualified immunity issue, could you let me 23
know what your intentions are with respect to that. 24
THE COURT: Because of the factual issues, I 25
cannot make a determination until the jury makes a 26
determination. 27
MS. LEAHEY: Your Honor, I would take an 28
exception to that. 29
I would state that in the first instance 30
qualified immunity is a question of law for the 31
Court to decide-- 32

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THE COURT: It is if there are no factual 1
issues. If this occurred and the jury finds that it 2
occurred the way that the [plaintiff] say[s] it 3
occurred, there is no immunity. 4
(Tr. 801 (emphases added).) Defense counsel argued that, for the 5
court not to rule on the qualified immunity defense and not to give 6
the jury a "qualified immunity set of instructions," would be 7
"prejudicial for the defendants and not the law." (Id.) The court 8
disagreed: 9
THE COURT: It is the law, because there is a 10
factual dispute here, the factual dispute has to be 11
resolved before there can be a finding of whether or 12
not there is qualified immunity. 13
You can't do it on this record. You would not 14
get summary judgment had you had this record and 15
made this motion, because there are questions of 16
fact. 17
(Id. (emphasis added).) 18
Focusing chiefly on Zellner's claim of excessive force, 19
defendants asked the court to pose to the jury the question of 20
whether "the events surrounding plaintiff's arrest, particularly 21
grabbing him, throwing him to the ground, kicking him and twisting 22
his arm occur[red] substantially as plaintiff testified." (Id. at 23
789.) It was agreed that "as plaintiff testified" would be changed 24
to "[as] plaintiff contends," in order to encompass not just 25
Zellner's own testimony but the testimony of his witnesses as well. 26
(Id.) The court decided that it would pose these detailed factual 27
questions individually, "because if there is a verdict here, I have 28
to make a decision on qualified immunity, it's only with as much 29
information about that as I can get." (Id. at 788.) 30
Comparably detailed questions were not, however, requested 31

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as to Zellner's conduct relating to his claims of false arrest and 1
malicious prosecution. Defendants proposed that the jury be asked 2
"did the defendants have probable cause to believe that plaintiff 3
was committing disorderly conduct by obstructing vehicular or 4
pedestrian traffic by blocking the driveway." (Tr. 790.) They 5
argued that this question "encapsulates the factual conflict in this 6
case as to false arrest, did he or did he not cause obstruction on 7
the roadway, by blocking the driveway." (Id. at 791.) The proposed 8
question, however, was a compound question, and the court elected to 9
ask the jury simply whether defendants had probable cause to believe 10
that Zellner had committed the offense of disorderly conduct or 11
resisting arrest. Defendants did not propose any simple fact 12
questions, such as whether Zellner had blocked the driveway, or sat 13
down, or yelled "everybody down." 14
The court's instructions to the jury with respect to 15
Zellner's claims of false arrest and malicious prosecution described 16
the parties' positions, in part, as follows: 17
The plaintiff contends that his Constitutional 18
right[s] were violated when . . . . he was 19
unlawfully arrested by the defendants for the 20
violation of disorderly conduct and the misdemeanor 21
crime of resisting arrest[] . . . . [a]nd . . . 22
when he was maliciously prosecuted by the defendants 23
for the violation and the misdemeanor. . . . 24
The defendants contend that . . . . there was 25
probable cause to arrest the plaintiff on both 26
charges[] . . . . [a]nd . . . there was probable 27
cause to prosecute the plaintiff on both charges and 28
this was done without malice. 29
. . . . 30
. . . [T]he defendants contend that the 31
plaintiff initiated a confrontation with Major 32
Weber, dropped to the driveway, where he sat to 33

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obstruct entrance to the driveway by a construction 1
truck and he incited others to block the driveway. 2
When he was told he was under arrest, he resisted 3
arrest by causing his body to become limp and 4
flailing his arms and placing his arms under his 5
body when troopers attempted to handcuff him. 6
(Tr. 895-96 (emphases added).) 7
With respect to Zellner's claim of false arrest, the court 8
told the jury that "the critical question for you to decide is 9
whether the arrest of the plaintiff was lawful," and that "whether 10
the arrest was lawful centers on whether the arrest was made by the 11
defendants acting on probable cause to believe" that Zellner had 12
committed the offense of disorderly conduct or resisting arrest. 13
(Id. at 901.) The court explained, inter alia, that "[p]robable 14
cause exists when the facts and circumstances within the knowledge 15
of the police officers at the time the arrest was made were 16
sufficient to warrant a person of reasonable prudence to believe 17
that a violation or a crime had been committed by the person 18
arrested." (Id. at 902.) 19
The court read the provisions of the New York disorderly 20
conduct and resisting arrest statutes under which Zellner had been 21
charged. As to § 240.20(5), the court stated: 22
"A person is guilty of disorderly conduct when with 23
intent to cause public inconvenience, annoyance or 24
alarm or recklessly creating a risk thereof, he 25
obstructs vehicular or pedestrian traffic.["] To be 26
guilty of disorderly conduct, the perpetrator must 27
act with intent to cause public inconvenience, 28
annoyance or alarm or recklessly creating a risk 29
thereof.[] 30
Inconvenience means tampering with the 31
legitimate transaction of public business. 32
Annoyance means discomfort or vexation. Alarm means 33
sudden fear. 34

-- 28 of 64 --

- 29 -
(Tr. 904.) As to resisting arrest, the court stated that 1
[s]ection 205.30 of the New York Penal law, insofar 2
as it is applicable to this case, reads as follows: 3
"A person is guilty of resisting arrest when he 4
intentionally prevents or attempts to prevent a 5
police officer or a peace officer from effecting an 6
authorized arrest." 7
. . . . 8
The arrest at issue must have been made in 9
accordance with the law. Namely, that it was based 10
on probable cause. Also, resisting arrest does not 11
require that the person being arrested use force or 12
violence. It is enough if he engages in his conduct 13
with the intent of preventing the officer from 14
effecting the authorized arrest of himself. 15
Accordingly, on the issue of the alleged 16
Constitutional violation, making an unlawful arrest 17
for disorderly conduct or resisting arrest, if you 18
determine that there was no probable cause to arrest 19
plaintiff on either of those charges [and that 20
defendants' actions were a proximate cause of injury 21
to Zellner], your verdict will be in favor of the 22
plaintiff and against the defendants, as to the 23
Federal Section 1983 false arrest cause of action. 24
However, if you determine that . . . there was 25
probable cause to arrest plaintiff for either 26
disorderly conduct or resisting arrest, then the 27
arrest would be lawful and your verdict must be in 28
favor of the defendants with regard to the charge of 29
false arrest. 30
. . . . 31
Also, as I instructed you, the fact that both 32
charges against the plaintiff resulted in a 33
dismissal is not evidence that the defendants lacked 34
probable cause at the time of the arrest. 35
(Id. at 905-06.) 36
In instructing the jury with respect to the claim of 37
malicious prosecution, the court described the four elements of such 38
a claim, i.e., initiation of a proceeding, termination of the 39
proceeding in the plaintiff's favor, lack of probable cause for 40

-- 29 of 64 --

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commencement or continuation of the proceeding, and actual malice on 1
the part of the defendants in commencing or continuing the 2
proceeding. (See Tr. 919-20.) The court instructed, inter alia, 3
that 4
[i]f probable cause existed for the police officer 5
to commence a criminal prosecution against the 6
plaintiff . . . , then the plaintiff cannot recover 7
against the defendant who initiated the criminal 8
proceeding. 9
(Id. at 922.) The court added: 10
I further instruct you that if you find that 11
the defendants did not act maliciously, your verdict 12
must be in favor of the defendants on the malicious 13
prosecution claim even though you find that they did 14
not have probable cause to believe the plaintiff 15
committed either disorderly conduct or the crime of 16
resisting arrest that was charged. Only if you find 17
that the plaintiff has proved both: 18
One, that the defendants did not have probable 19
cause to charge the plaintiff with either the 20
violation or the crime, and 21
Two, that the defendants acted with malice, 22
will your verdict be in favor of the plaintiff 23
against the defendants. 24
(Id. at 923-24.) 25
The court gave instructions on compensatory damages and 26
reminded the jury that "throughout the case you are considering each 27
defendant separately and your verdict will be reported separately as 28
to each defendant." (Tr. 926.) The court also informed the jury 29
that if it found that Zellner was entitled to recover and further 30
found that a defendant had caused him injury maliciously or wantonly 31
or oppressively and deserved to be punished, it had discretion to 32
award Zellner punitive damages. (See Tr. 928-29.) The court 33
explained that 34

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[a]n act or failure to act is maliciously done 1
if prompted or accompanied by ill will or spite or 2
grudge toward the injured person individually. An 3
act or failure to act is w[anton]ly done if done in 4
reckless or callous disregard of or indifferent to 5
the rights of the injured person. An act or a 6
failure to act is oppressively done if done in a way 7
or manner which injur[]es or damages or otherwise 8
violates the rights of another person with 9
unnecessary harshness or severity or by misuse or 10
abuse of authority or power or by taking advantage 11
of some weaknesses or misfortune of another person. 12
(Id. at 929.) The court stated, however, that the jury should 13
initially make a finding only as to whether punitive damages were 14
warranted, without attempting to determine an amount. (See id.) 15
C. The Jury's Verdict 16
The jury was given a special verdict sheet posing 10 17
questions, most with subparts, to be answered with respect to (a) 18
the merits of Zellner's claims against each defendant, (b) the 19
amount of compensatory damages, if any, that Zellner should receive 20
from each defendant, and (c) whether or not he should receive 21
punitive damages. As detailed below, the jury found in favor of 22
Zellner on his claims for false arrest and malicious prosecution, 23
awarding him compensatory damages in the amount of $40,000 against 24
each defendant, and found that Zellner was entitled to punitive 25
damages as well; the jury found against Zellner on his claim of 26
excessive force, although it credited his evidence that defendants 27
had grabbed him and twisted his arm. 28
The precise questions posed on the special verdict sheet, 29
and the jury's findings in response, were as follows: 30
Do you find by a preponderance of the evidence: 31

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1. That the events surrounding plaintiff's arrest, 1
particularly grabbing him, throwing him to the 2
ground, and then striking him, kicking him, and 3
twisting his arm occurred substantially as 4
plaintiff contends? 5
Grabbing him? Yes 6
Throwing him to the ground? No 7
Striking him? No 8
Kicking him? No 9
Twisting his arm? Yes 10
2. That defendants had probable cause to believe 11
that the plaintiff was committing the violation 12
of disorderly conduct or the crime of resisting 13
arrest? 14
Disorderly conduct? No 15
Resisting arrest? No 16
3. That the defendant's acts in falsely arresting 17
him were the proximate cause of damages 18
sustained by the plaintiff? 19
Defendant Weber: Yes 20
Defendant Summerlin: Yes 21
4. That Defendant Weber took actions 22
to initiate or continue the criminal 23
prosecution against the plaintiff? Yes 24
5. That the defendant intentionally committed acts 25
that violated the plaintiff's federal 26
constitutional right not to be maliciously 27
prosecuted? 28
Defendant Weber: Yes 29
Defendant Summerlin: Yes 30
6. That the defendant's acts in maliciously 31
prosecuting him were the proximate cause of 32
damages sustained by the plaintiff? 33
Defendant Weber: Yes 34
Defendant Summerlin: Yes 35
7. That the defendant intentionally used excessive 36
force against the plaintiff when 37

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Arresting him? 1
Defendant Weber: No 2
Defendant Summerlin: No 3
Handcuffing him? 4
Defendant Weber: No 5
Defendant Summerlin: No 6
Taking him to the police vehicle? 7
Defendant Weber: No 8
Defendant Summerlin: No 9
8. That the defendant's acts in using excessive 10
force were the proximate cause of damages 11
sustained by the plaintiff? 12
Defendant Weber: No 13
Defendant Summerlin: No 14
INSTRUCTIONS AS TO DAMAGES 15
If your verdict is in favor of both defendants 16
on all causes of action, do not answer the damages 17
questions below, cease deliberations, and the 18
foreperson should sign and date the verdict sheet 19
and advise the court by note that you are ready to 20
return to the courtroom to announce your verdict. 21
On the other hand, if you have found a verdict 22
in favor of the plaintiff on any of the causes of 23
action, please answer the appropriate damages 24
questions that follow. 25
Compensatory Damages 26
9. Please state the amount of damages, if any, you 27
award to the plaintiff for his physical 28
injuries and his pain and suffering from 29
February 25, 2000 to the present date against 30
each defendant. 31
Defendant Weber: $40,000 32
Defendant Summerlin: $40,000 33
Punitive Damages 34
You are to consider the subject of punitive 35
damages only with regard to a defendant or 36

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defendants you have found liable on any of the 1
causes of action. 2
10. Do you award punitive damages to the plaintiff 3
against the defendant? 4
Defendant Weber: Yes 5
Defendant Summerlin: Yes 6
(November 24, 2004 Verdict Sheet ("Special Verdict").) 7
In connection with the jury's finding that Zellner should 8
receive punitive damages, the trial continued for an additional 9
half-day of testimony with respect to each defendant's financial 10
condition. Following further deliberations, the jury assessed 11
punitive damages of $5,000 against Weber and $500 against Summerlin. 12
(See November 26, 2004 Verdict Sheet-2.) 13
Judgment was eventually entered reflecting the jury's 14
verdicts. 15
D. The Posttrial Motions 16
Following the jury's verdicts, defendants renewed their 17
motion for judgment as a matter of law, pursuant to Fed. R. Civ. P. 18
50(b), arguing principally (a) that the evidence was insufficient to 19
support the jury's findings in favor of Zellner on his claims of 20
false arrest and malicious prosecution and its award of punitive 21
damages, and (b) that the officers were protected by qualified 22
immunity. Defendants also moved in the alternative for a new trial 23
on the ground, inter alia, that the court should have allowed them 24
to present evidence at trial as to facts that would have given them 25
probable cause to arrest Zellner on other charges. 26
Zellner opposed defendants' motions and moved pursuant to 27

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Fed. R. Civ. P. 59(a) for a new trial on his excessive force claim. 1
In support of his motion, Zellner argued principally that the jury 2
should have been instructed that if it found in his favor on the 3
false arrest claim it must also find that the force used to effect 4
the arrest was excessive. 5
In an opinion dated September 6, 2005, reported at 399 6
F.Supp.2d 154, the district court granted defendants' motion for 7
judgment as a matter of law dismissing Zellner's false arrest and 8
malicious prosecution claims only on the ground of qualified 9
immunity; and it denied Zellner's motion for a new trial on his 10
excessive force claim. In rejecting defendants' challenge to the 11
sufficiency of the evidence on the issue of probable cause, the 12
court stated as follows: 13
Defendants argue that they had probable cause 14
to arrest Plaintiff based on the fact that he 15
intentionally blocked the truck as it was attempting 16
to enter the construction site, which Defendants 17
argue is incontrovertibly shown by the videotape, 18
and initiated a confrontation with Weber during this 19
tense standoff by urging Weber to hold off on taking 20
any action until the protective order arrived in a 21
manner that was "obstructive and distracting, in 22
view of the imminent crisis posed by the truck." 23
However, the video itself was not conclusive as to 24
what happened when the truck attempted to turn into 25
the site, and the testimony at trial was 26
contradictory, with Plaintiff and members of the 27
Shinnecock tribe testifying that Plaintiff did not 28
obstruct the path of the truck but merely engaged 29
Weber in conversation in an attempt to maintain the 30
status quo until the restraining order arrived. The 31
jury was free to consider all of the evidence and to 32
weigh the credibility of the witnesses. In deciding 33
in Plaintiff's favor on the false arrest claim, the 34
jury found Plaintiff's account of the events worthy 35
of more credence. This Court cannot now re-weigh 36
the conflicting evidence or draw its own conclusions 37
as to the credibility of the witnesses at trial, for 38
to do so would be to substitute the Court's judgment 39
for that of the jury, which is not permitted. Smith 40

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v. Lightning Bolt Prods., Inc., 861 F.2d 363, 367 1
(2d Cir.1988). Thus, the Court finds that there is 2
sufficient evidence to sustain the jury's finding 3
that Plaintiff's arrest was not based on probable 4
cause. 5
399 F.Supp.2d at 157-58 (emphases added). 6
In denying defendants' challenge to the sufficiency of the 7
evidence on Zellner's malicious prosecution claim, the court stated 8
as follows: 9
Defendants argue that Plaintiff failed to 10
demonstrate that the officers lacked probable cause 11
to initiate the prosecution and that they harbored 12
malice towards Plaintiff. As discussed above, there 13
was evidence adduced at trial to support the jury's 14
verdict that Defendants lacked probable cause to 15
arrest Plaintiff and there was no suggestion that 16
Defendants thereafter obtained further evidence 17
giving them probable cause to believe Plaintiff was 18
guilty of the crimes charged against him. . . . 19
With respect to malice, the Second Circuit has held 20
that where "a jury could find that probable cause 21
for the charges against the plaintiff[] was lacking 22
. . . that finding alone would support an inference 23
of malice." Ricciuti v. New York City Transit 24
Auth., 124 F.3d 123, 131 (2d Cir.1997). Thus, the 25
Court will not disturb the jury's finding that 26
Defendants acted without probable cause and with 27
malice in prosecuting Plaintiff. 28
399 F.Supp.2d at 158. In addition, the court also ruled, inter 29
alia, that defendants' challenge to the jury's award of punitive 30
damages was without merit, noting that "[p]unitive damages are 31
available in section 1983 cases where 'the defendant's conduct is 32
shown to be motivated by evil motive or intent, or when it involves 33
reckless or callous indifference to the federally protected rights 34
of others.'" Id. at 162 (quoting Smith v. Wade, 461 U.S. 30, 56 35
(1983)). The court found that the award of punitive damages here 36
was supported by the jury's findings and the evidence, and that the 37
amounts awarded were within the range found reasonable in similar 38

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cases. See 399 F.Supp.2d at 162-63. 1
As to defendants' entitlement to qualified immunity, the 2
court, after noting that it was required, on defendants' motion for 3
judgment as a matter of law, to view the evidence in the light most 4
favorable to Zellner, stated as follows: 5
The evidence presented at trial . . . established 6
the following events leading up to Plaintiff's 7
arrest: (1) there was a large crowd of demonstrators 8
at the construction site who had been there for 9
several hours; (2) the demonstrators were instructed 10
by the police to stay off of the road and the 11
driveway allowing ingress to and egress from the 12
site; (3) a construction truck arrived on the scene 13
and the driver indicated his intention to enter the 14
site through the driveway by turning on his blinker; 15
(4) the truck remained immobile in the road for 16
nearly five minutes, blocking traffic completely 17
from at least one direction; (5) while the truck was 18
stopped in the road, demonstrators, including 19
children, walked and ran around it; (6) Plaintiff 20
walked into the driveway and turned to face the road 21
where the truck was waiting; (7) Plaintiff engaged 22
Weber in conversation and urged Weber not to take 23
any action until a restraining order, which was 24
expected, arrived, to which Weber responded that the 25
road needed to remain clear; and (8) at some point 26
Plaintiff made a crouching or squatting motion 27
towards the ground. 28
Id. at 159 (emphasis added). "[C]onsider[ing] all of these events 29
in context in deciding whether it would have been clear to a 30
reasonable officer that there was no probable cause to arrest 31
Plaintiff for disorderly conduct," id., the court concluded as 32
follows: 33
It is apparent from the record that Defendants were 34
faced with a tense situation for the several minutes 35
when the construction truck was attempting to enter 36
a construction site flanked on all sides by 37
protestors and their children. It is further clear 38
that Plaintiff's actions in engaging Major Weber in 39
conversation at that point, thereby distracting his 40
attention from the situation, and in making some 41
sort of movement that could have been interpreted as 42

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an attempt to sit down in the path of the truck, 1
only exacerbated the situation. Thus, while 2
Defendants may have acted without justifiable cause 3
in arresting Plaintiff, the Court cannot say that 4
their "judgment was so flawed that no reasonable 5
officer would have made a similar choice." Lennon 6
v. Miller, 66 F.3d 416, 424-25 (2d Cir.1995); see 7
also Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 8
534, 116 L.Ed.2d 589 (1991) ("The qualified immunity 9
standard 'gives ample room for mistaken judgments' 10
by protecting 'all but the plainly incompetent or 11
those who knowingly violate the law.'") (quoting 12
Malley v. Briggs, 475 U.S. 335, 341, 343, 106 S.Ct. 13
1092, 89 L.Ed.2d 271 (1986)). Thus, the Court finds 14
that Defendants are entitled to qualified immunity 15
on the false arrest and malicious prosecution 16
charges. 17
399 F.Supp.2d at 159-60 (emphases added). 18
Zellner, in his Rule 59(a) motion for a new trial, argued 19
principally that the jury should have been instructed that if it 20
found in his favor on the false arrest claim, it must also find in 21
his favor on the excessive-force-during-arrest claim, because if the 22
arrest was unlawful no force whatever could be justified. For that 23
proposition, Zellner relied on Atkins v. New York City, 143 F.3d 100 24
(2d Cir. 1998). The district court denied this motion for three 25
reasons. First, Zellner had not requested such an instruction. 26
Second, the court concluded that Atkins was not intended to be so 27
read. Third, the court stated that defendants would in any event be 28
entitled to qualified immunity on the excessive force claim as well. 29
See 399 F.Supp.2d at 163-65. 30
A new final judgment was entered dismissing all of 31
Zellner's claims against Weber and Summerlin. This appeal followed. 32

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II. DISCUSSION 1
On appeal, Zellner contends principally that, in ruling 2
that defendants are entitled to judgment as a matter of law on the 3
basis of qualified immunity with respect to his false arrest and 4
malicious prosecution claims, the district court impermissibly made 5
findings of fact and ignored facts found by the jury. He also 6
contends that the court should have granted his motion for a new 7
trial with respect to his excessive force claim, on the theory that 8
the jury should have been instructed that if his arrest was 9
unauthorized, the use of any force by the officers was excessive as 10
a matter of law. 11
Defendants contend, inter alia, that the entry of judgment 12
as a matter of law in their favor should be upheld on the ground 13
that they had either actual or "arguable" probable cause to arrest 14
Zellner for disorderly conduct in violation of § 240.20(5) of the 15
New York Penal Law as charged, or to arrest him under subsections 16
(6) and (7) of that section or under N.Y. Penal Law § 195.05 17
(McKinney 1999) (see defendants' brief on appeal at 29-31). They 18
state that "the question here is whether the evidence establishes 19
that, despite the jury's conclusion that Defendants lacked probable 20
cause to arrest Zellner for disorderly conduct or resisting arrest, 21
it was nonetheless reasonable for Defendants to believe they had 22
probable cause to arrest Zellner for any charge." (Defendants' 23
brief on appeal at 29 (emphasis in original).) 24
As to the false arrest and malicious prosecution claims, 25
we conclude that, in light of the jury's findings and the principles 26

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(a) that factual disputes are to be resolved by the jury, and (b) 1
that on a motion for judgment as a matter of law the record must be 2
viewed in the light most favorable to the party opposing the motion, 3
the granting of judgment as a matter of law in favor of defendants 4
was error. As to the excessive force claim, we see no error in the 5
district court's denial of Zellner's motion for a new trial. 6
A. Judgment as a Matter of Law on the Basis of Qualified Immunity 7
1. Qualified Immunity 8
Qualified immunity shields government officials performing 9
discretionary functions "from liability for civil damages insofar as 10
their conduct does not violate clearly established statutory or 11
constitutional rights of which a reasonable person would have 12
known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see, e.g., 13
Mitchell v. Forsyth, 472 U.S. 511, 524 (1985); Coons v. Casabella, 14
284 F.3d 437, 440-41 (2d Cir. 2002) ("Coons"); Cerrone v. Brown, 246 15
F.3d 194, 199 (2d Cir. 2001) ("Cerrone"). Where the right at issue 16
in the circumstances confronting police officers--here, the right 17
not to be subjected to a warrantless arrest without probable cause-- 18
was clearly established but was violated, the officers will 19
nonetheless be entitled to qualified immunity "if . . . it was 20
objectively reasonable for them to believe their acts did not 21
violate those rights." Oliveira v. Mayer, 23 F.3d 642, 648 (2d Cir. 22
1994) ("Oliveira"), cert. denied, 513 U.S. 1076 (1995); see, e.g., 23
Anderson v. Creighton, 483 U.S. 635, 639-40 (1987). The qualified 24
immunity test is an objective one. "[I]f officers of reasonable 25
competence could disagree" as to whether probable cause existed, 26

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- 41 -
"immunity should be recognized." Malley v. Briggs, 475 U.S. 335, 1
341 (1986). But "if, on an objective basis, it is obvious that no 2
reasonably competent officer would have concluded that" probable 3
cause existed, "[d]efendants will not be immune . . . ." Id. 4
Whether a defendant officer's conduct was objectively 5
reasonable is a mixed question of law and fact. See, e.g., Kerman 6
v. City of New York, 374 F.3d 93, 109 (2d Cir. 2004) ("Kerman"); 7
Lennon v. Miller, 66 F.3d 416, 420-21 (2d Cir. 1995) ("Lennon"); 8
Oliveira, 23 F.3d at 649-50; Warren v. Dwyer, 906 F.2d 70, 76 (2d 9
Cir.) ("Warren"), cert. denied, 498 U.S. 967 (1990). The ultimate 10
question of whether it was objectively reasonable for the officer to 11
believe that his conduct did not violate a clearly established 12
right, i.e., whether officers of reasonable competence could 13
disagree as to the lawfulness of such conduct, is to be decided by 14
the court. However, "[a] contention that--notwithstanding a clear 15
delineation of the rights and duties of the respective parties at 16
the time of the acts complained of--it was objectively reasonable 17
for the official to believe that his acts did not violate those 18
rights 'has its principal focus on the particular facts of the 19
case.'" Kerman, 374 F.3d at 109 (quoting Hurlman v. Rice, 927 F.2d 20
74, 78-79 (2d Cir. 1991)); see, e.g., Oliveira, 23 F.3d at 649-50. 21
If there is no dispute as to the material historical 22
facts, the matter of whether the officer's conduct was objectively 23
reasonable is an issue of law to be determined by the court. See, 24
e.g., Lennon, 66 F.3d at 421; Robison v. Via, 821 F.2d 913, 921 (2d 25
Cir. 1987). "[I]f there is such a dispute," however, "the factual 26
questions must be resolved by the factfinder." Kerman, 374 F.3d at 27

-- 41 of 64 --

- 42 -
109; see, e.g., Oliveira, 23 F.3d at 649; Calamia v. City of New 1
York, 879 F.2d 1025, 1036 (2d Cir. 1989). 2
Once the jury has resolved any disputed facts that are 3
material to the qualified immunity issue, the ultimate determination 4
of whether the officer's conduct was objectively reasonable is to be 5
made by the court. See, e.g., Stephenson v. Doe, 332 F.3d 68, 81 6
(2d Cir. 2003) (after the district court receives "the jury['s] 7
. . . deci[sion as to] what the facts were that the officer faced or 8
perceived," the court then may "make the ultimate legal 9
determination of whether qualified immunity attaches on those facts" 10
(internal quotation marks omitted) (emphasis added)); Lennon, 66 11
F.3d at 421 (the ultimate question of entitlement to qualified 12
immunity is one of law for the court to decide "[o]nce disputed 13
factual issues are resolved" (internal quotation marks omitted)); 14
Warren, 906 F.2d at 76 ("If there are unresolved factual issues 15
which prevent an early disposition of the defense, the jury should 16
decide these issues . . . . The ultimate legal determination 17
whether . . . a reasonable police officer should have known he acted 18
unlawfully" should be made by the court "on the facts found" by the 19
jury.); accord id. at 76, 77 (Winter, J., dissenting) (Although "the 20
ultimate decision regarding the qualified immunity defense is for 21
the court," "the court [that is] ruling on the qualified immunity 22
issue must know what the facts were that the officer faced or 23
perceived, and the finding of those facts appears to be a matter for 24
the jury."). 25
Qualified immunity is an affirmative defense. See Gomez 26
v. Toledo, 446 U.S. 635, 640 (1980). 27

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[B]ecause qualified immunity is an affirmative 1
defense, it is incumbent upon the defendant to 2
plead, and adequately develop, a qualified immunity 3
defense during pretrial proceedings so that the 4
trial court can determine . . . which facts material 5
to the qualified immunity defense must be presented 6
to the jury to determine its applicability once the 7
case has gone to trial. 8
Blissett v. Coughlin, 66 F.3d 531, 538 (2d Cir. 1995) (emphasis 9
added). To the extent that a particular finding of fact is 10
essential to a determination by the court that the defendant is 11
entitled to qualified immunity, it is the responsibility of the 12
defendant to request that the jury be asked the pertinent question. 13
See, e.g., id. If the defendant does not make such a request, he is 14
not entitled to have the court, in lieu of the jury, make the needed 15
factual finding. See, e.g., Kerman, 374 F.3d at 120; see also 16
Warren, 906 F.2d at 76 ("the jury should decide these issues on 17
special interrogatories"). 18
2. Probable Cause and "Arguable" Probable Cause 19
Probable cause to arrest exists when the officers have 20
knowledge of, or reasonably trustworthy information as to, facts and 21
circumstances that are sufficient to warrant a person of reasonable 22
caution in the belief that an offense has been or is being committed 23
by the person to be arrested. See, e.g., Dunaway v. New York, 442 24
U.S. 200, 208 n.9 (1979); Wong Sun v. United States, 371 U.S. 471, 25
479 (1963); Brinegar v. United States, 338 U.S. 160, 175-76 (1949); 26
Carroll v. United States, 267 U.S. 132, 161-62 (1925); Lee v. 27

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Sandberg, 136 F.3d 94, 102 (2d Cir. 1997). Probable cause is to be 1
assessed on an objective basis. "Whether probable cause exists 2
depends upon the reasonable conclusion to be drawn from the facts 3
known to the arresting officer at the time of the arrest." 4
Devenpeck v. Alford, 543 U.S. 146, 152 (2004). "[A]n arresting 5
officer's state of mind (except for the facts that he knows) is 6
irrelevant to the existence of probable cause. See Whren v. United 7
States, 517 U.S. 806, 812-813 (1996) (reviewing cases); Arkansas v. 8
Sullivan, 532 U.S. 769 (2001) (per curiam)." Devenpeck, 543 U.S. at 9
153 (emphasis added). Thus, an officer's "subjective reason for 10
making the arrest need not be the criminal offense as to which the 11
known facts provide probable cause," id.; an arrest is not unlawful 12
so long as the officer has knowledge of, or reasonably trustworthy 13
information as to, facts and circumstances sufficient to provide 14
probable cause to believe that the person arrested has committed any 15
crime, see, e.g., id. at 155; Jaegly v. Couch, 439 F.3d 149, 154 (2d 16
Cir. 2006) ("[A] plaintiff is not entitled to damages under § 1983 17
for false arrest so long as the arrest itself was supported by 18
probable cause, regardless of whether probable cause supported any 19
individual charge identified by the arresting officer at the time of 20
arrest."). 21
The existence of probable cause need not be assessed on 22
the basis of the knowledge of a single officer. 23
[A]n arrest . . . is permissible where the actual 24
arresting or searching officer lacks the specific 25
information to form the basis for probable cause or 26
reasonable suspicion but sufficient information to 27
justify the arrest or search was known by other law 28
enforcement officials initiating or involved with 29
the investigation. 30

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- 45 -
United States v. Colon, 250 F.3d 130, 135 (2d Cir. 2001); see, e.g., 1
United States v. Hensley, 469 U.S. 221, 230-33 (1985). This 2
principle, known as the collective or imputed knowledge doctrine, 3
recognizes that, "in light of the complexity of modern police work, 4
the arresting officer cannot always be aware of every aspect of an 5
investigation; sometimes his authority to arrest a suspect is based 6
on facts known only to his superiors or associates." United States 7
v. Valez, 796 F.2d 24, 28 (2d Cir. 1986), cert. denied, 479 U.S. 8
1067 (1987); see, e.g., United States v. Colon, 250 F.3d at 135. 9
Where it has been conceded or established that the 10
officers arrested the plaintiff without a warrant and without 11
probable cause, the question raised by the qualified immunity 12
defense is whether it was objectively reasonable for the officers to 13
believe they did have probable cause. Referring to this standard as 14
"arguable" probable cause, we have stated that 15
[a]rguable probable cause exists when "a reasonable 16
police officer in the same circumstances and 17
possessing the same knowledge as the officer in 18
question could have reasonably believed that 19
probable cause existed in the light of well 20
established law." Lee v. Sandberg, 136 F.3d 94, 102 21
(2d Cir.1997) (internal quotation marks omitted). 22
Cerrone, 246 F.3d at 202-03 (emphasis in original); see also 23
Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) ("Arguable 24
probable cause exists 'if either (a) it was objectively reasonable 25
for the officer to believe that probable cause existed, or 26
(b) officers of reasonable competence could disagree on whether the 27
probable cause test was met.'" (quoting Golino v. City of New Haven, 28
950 F.2d 864, 870 (2d Cir. 1991))). 29
Although the tests for probable cause and arguable 30

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- 46 -
probable cause are thus not congruent, see, e.g., Anderson v. 1
Creighton, 483 U.S. at 640-41, the concept of probable cause is the 2
same in both inquiries. "Probable cause existed if 'at the moment 3
the arrest was made . . . the facts and circumstances within the[ 4
officers'] knowledge and of which they had reasonably trustworthy 5
information were sufficient to warrant a prudent man in believing' 6
that [the suspect] had violated" the law, Hunter v. Bryant, 502 U.S. 7
224, 228 (1991) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)) 8
(emphasis ours); and an officer sued under the Fourth Amendment for 9
false arrest is "entitled to immunity if a reasonable officer could 10
have believed that probable cause existed," Hunter, 502 U.S. at 228 11
(emphasis added). Accordingly, like the probable cause analysis, 12
the analysis of a qualified immunity defense to claims that official 13
actions were taken without probable cause "entails an inquiry into 14
the facts known to the officer at the time of the arrest," Coons, 15
284 F.3d at 441. "A court must evaluate the objective 16
reasonableness of the appellants' conduct 'in light of . . . the 17
information the . . . officers possessed.'" Cerrone, 246 F.3d at 18
202 (quoting Anderson v. Creighton, 483 U.S. at 641). 19
"'Arguable' probable cause" must "not be misunderstood to 20
mean 'almost' probable cause." Jenkins v. City of New York, 478 21
F.3d 76, 87 (2d Cir. 2007). 22
The essential inquiry in determining whether 23
qualified immunity is available to an officer 24
accused of false arrest is whether it was 25
objectively reasonable for the officer to conclude 26
that probable cause existed. See Anderson[ v. 27
Creighton], 483 U.S. at 644 . . . . There should be 28
no doubt that probable cause remains the relevant 29
standard. If officers of reasonable competence 30
would have to agree that the information possessed 31

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by the officer at the time of arrest did not add up 1
to probable cause, the fact that it came close does 2
not immunize the officer. 3
Jenkins v. City of New York, 478 F.3d at 87 (emphasis added); see 4
also Cerrone, 246 F.3d at 202-03 (arguable probable cause focuses on 5
the objectively reasonable belief of "a reasonable police officer in 6
the same circumstances and possessing the same knowledge as the 7
officer in question" (internal quotation marks omitted)). 8
3. The Standard for Judgment as a Matter of Law 9
In considering a motion for judgment as a matter of law, 10
the district court 11
must draw all reasonable inferences in favor of the 12
nonmoving party, and it may not make credibility 13
determinations or weigh the evidence. . . . 14
"Credibility determinations, the weighing of the 15
evidence, and the drawing of legitimate inferences 16
from the facts are jury functions, not those of a 17
judge." . . . Thus, although the court should 18
review the record as a whole, it must disregard all 19
evidence favorable to the moving party that the jury 20
is not required to believe. 21
Reeves v. Sanderson Plumbing, 530 U.S. 133, 150-51 (2000) (quoting 22
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)) (emphases 23
ours). Thus, a court may grant a motion for judgment as a matter of 24
law "only if it can conclude that, with credibility assessments made 25
against the moving party and all inferences drawn against the moving 26
party, a reasonable juror would have been compelled to accept the 27
view of the moving party." Piesco v. Koch, 12 F.3d 332, 343 (2d 28
Cir. 1993) (emphasis added). In ruling on a such motion, the court 29

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must bear in mind that the jury is free to believe part and 1
disbelieve part of any witness's testimony. See, e.g., Fiacco v. 2
City of Rensselaer, 783 F.2d 319, 325 (2d Cir. 1986), cert. denied, 3
480 U.S. 922 (1987); see also Haywood v. Koehler, 78 F.3d 101, 105 4
(2d Cir. 1996) (jurors are "free to accept bits of testimony from 5
several witnesses and to make reasonable inferences from whatever 6
testimony they credit[]"). 7
Incontrovertible evidence relied on by the moving party, 8
such as a relevant videotape whose accuracy is unchallenged, should 9
be credited by the court on such a motion if it so utterly 10
discredits the opposing party's version that no reasonable juror 11
could fail to believe the version advanced by the moving party. See 12
Scott v. Harris, 127 S. Ct. 1769, 1775-76 (2007) (so holding with 13
respect to proceedings on summary judgment); see generally Reeves, 14
530 U.S. at 150 ("the standard for granting summary judgment 15
'mirrors' the standard for judgment as a matter of law, such that 16
'the inquiry under each is the same'" (quoting Anderson v. Liberty 17
Lobby, Inc., 477 U.S. at 250-51)). 18
The court is not permitted to find as a fact a proposition 19
that is contrary to a finding made by the jury. See, e.g., Smith v. 20
Lightning Bolt Productions, Inc., 861 F.2d 363, 367 (2d Cir. 1988) 21
(court "cannot . . . substitute its judgment for that of the jury" 22
(internal quotation marks omitted)); see also Leblanc-Sternberg v. 23
Fletcher, 67 F.3d 412, 430 (2d Cir. 1995) ("In ruling on the motion 24
by [one codefendant] for judgment as a matter of law, . . . the 25
court was required to view the evidence in the light most favorable 26
to the [individual] plaintiffs"; "whatever its own view of the facts 27

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may have been, the court was not entitled to substitute its view for 1
adequately supported findings that were implicit in the jury's 2
verdict" against another defendant.), cert. denied, 518 U.S. 1017 3
(1996). Nor is the court permitted to make findings on factual 4
questions not submitted to the jury where those findings take the 5
evidence in the light most favorable to the moving party, rather 6
than the opposing party. See, e.g., Kerman, 374 F.3d at 120. 7
We review de novo the district court's decision on a 8
motion for judgment as a matter of law. In so doing, we apply the 9
same standard that is required of the district court. We "consider 10
the evidence in the light most favorable to the party against whom 11
the motion was made and . . . give that party the benefit of all 12
reasonable inferences that the jury might have drawn in his favor 13
from the evidence." Black v. Finantra Capital, Inc., 418 F.3d 203, 14
209 (2d Cir. 2005) (internal quotation marks omitted). We 15
"disregard all evidence favorable to the moving party that the jury 16
is not required to believe." Reeves, 530 U.S. at 151. 17
4. The Record in the Present Case 18
In the present case, defendants seek to defend the 19
district court's decision granting them qualified immunity as a 20
matter of law by asserting that they had actual or arguable probable 21
cause to arrest Zellner (a) for disorderly conduct in violation of 22
N.Y. Penal Law § 240.20(5), as charged, and (b) for other violations 23
not charged, to wit, disorderly conduct in violation of subsections 24
(6) and (7) of § 240.20 and obstructing the troopers' functioning in 25
violation of Penal Law § 195.05. We conclude, applying the above 26

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principles, that the record does not support qualified immunity on 1
any of these bases. 2
a. Disorderly Conduct As Charged, § 240.20(5) 3
In support of probable cause or arguable probable cause 4
for Zellner's arrest on the actual charge of violating § 240.20(5), 5
which involves obstruction of traffic, defendants state principally 6
that after the truck arrived, "Zellner walked into the crowd that 7
was in the direct path of the truck" (Defendants' brief on appeal at 8
33); that "Zellner deliberately started to sit down . . . and 9
shouted for everybody else to do so" (id. at 7); and that during his 10
conversation with Major Weber, Zellner crouched, squatted, or made 11
some other movement toward the ground (see id. at 35, 40) "that 12
reasonably could have been interpreted as an attempt to sit down in 13
the path of the truck" (id. at 35). These contentions impermissibly 14
disregard the evidence and the jury's verdict. 15
First, defendants' assertion that "Zellner walked into the 16
crowd that was in the direct path of the truck" (Defendants' brief 17
on appeal at 33) is unaccompanied by any supporting citation. 18
Moreover, if we draw all inferences in Zellner's favor, as we must, 19
the record does not support the contention that Zellner was actually 20
and immediately blocking the truck. Reverend Davis testified that 21
Zellner was not with the group that was standing in front of the 22
truck but rather was away from the road. (See Tr. 78.) And 23
although the videotape shows that Zellner walked into a group of 24

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people standing in and around the driveway, it is impossible to tell 1
whether he was in the truck's direct path at any time. 2
Second, although Major Weber and the troopers who 3
testified at trial stated that Zellner had sat down on the ground, 4
and some of the troopers testified that Zellner had yelled for 5
everyone else to sit as well, the jury's rejection of that testimony 6
is implicit in its finding that defendants failed to show that they 7
had probable cause for Zellner's arrest for disorderly conduct. The 8
evidence taken in the light most favorable to Zellner--as we are 9
required to view it, and the jury was at liberty to view it--was 10
that Zellner introduced himself to Major Weber, and the two shook 11
hands; that, in a quiet and respectful manner, Zellner said that he 12
understood that a restraining order requiring cessation of the 13
construction work was on the way; that he requested of Major Weber 14
that the troopers not take any further action until the restraining 15
order arrived; and that Zellner said he hoped that there would be 16
evenhanded treatment of everyone. Some 20-30 seconds into this 17
conversation, while literally still speaking to Major Weber, Zellner 18
was grabbed from behind, pulled backwards away from Weber, and 19
pulled and pushed to the ground. 20
Zellner and his witnesses testified that Zellner did not 21
sit down and that he did not attempt to sit down. Zellner did not 22
yell "everybody down" to the crowd even once, much less two or three 23
times as Major Weber testified. Zellner did not yell anything. The 24
protestors who testified at trial, some of whom were close enough to 25
touch Zellner before he was grabbed by the troopers, did not hear 26
him yell anything. Even Trooper Parker, standing right behind 27

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Zellner and slightly to his right, did not hear him yell anything. 1
Plainly the jury was not required to accept the defense version that 2
Zellner sat down on the ground or that he yelled for anyone else to 3
sit down. 4
Nor is there merit in defendants' assertion, invoking the 5
district court's findings, that "[d]uring []his conversation" with 6
Major Weber (Defendants' brief on appeal at 35), Zellner made a 7
"'crouching or squatting motion towards the ground'" or otherwise 8
"made 'some sort of movement that could have been interpreted as an 9
attempt to sit down in the path of the truck'" (id. at 40 (quoting 10
district court opinion, 399 F.Supp.2d at 159) (emphasis ours)). The 11
contention that defendants are entitled to qualified immunity on 12
this basis is flawed for a number of reasons. 13
First, no trooper could make the "interpret[ation]" 14
hypothesized above, unless Zellner actually made a crouching, 15
squatting, or other downward movement. Absent such a movement, 16
there was nothing for the troopers to interpret. Whether or not 17
Zellner made any such movement, however, was a question of fact. 18
"The court . . . found that some motion was made" (Defendants' brief 19
on appeal at 41), which obviously was a factual finding. But making 20
findings of fact and drawing factual inferences "'are jury 21
functions, not those of a judge.'" Reeves, 530 U.S. at 150 (quoting 22
Anderson v. Liberty Lobby, Inc., 477 U.S. at 255). 23
Second, as to any act that defendants contended Zellner 24
performed, and which they wished to argue provided either probable 25
cause or arguable probable cause for his arrest, it was incumbent on 26
defendants to have the jury decide whether Zellner in fact performed 27

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that act. Defendants did not request that the court include in the 1
special verdict sheet any fact-specific question as to the conduct 2
in which Zellner engaged, including whether he sat down on the 3
ground, or made a crouching or squatting motion, or made any 4
movement toward the ground. No such question having been put to the 5
jury (and answered favorably to defendants), no movement by Zellner 6
such as crouching or squatting was established as a fact. The court 7
was not entitled to provide the missing factual finding unless the 8
inference the court drew was one that the jury would have been 9
compelled to draw. 10
No inference that Zellner made such a movement was 11
compelled in this case. Defendants argue that the court's finding 12
that Zellner made a "'crouching or squatting motion'" or some other 13
such movement "'towards the ground'" was "appropriate" because "the 14
jury rejected Zellner's assertion that he was thrown to the ground." 15
(Defendants' brief on appeal at 40 (quoting district court opinion, 16
399 F.Supp.2d at 159).) This contention disregards the record, the 17
verdict, and the principles discussed in Part II.A.3. above. 18
Although the jury found that Zellner did not establish that he was 19
"throw[n] . . . to the ground" (Special Verdict Answer 1 (emphasis 20
added)), Zellner had testified that he was "face-to-face with Major 21
Weber" when he "was grabbed from behind, pulled backwards and down" 22
(Tr. 380) and that he "was grabbed from behind and pushed down" (id. 23
at 345). Reverend Davis testified to her observation that Zellner 24
was taken to the ground by "4 troopers touching him." (Id. at 58.) 25
The photograph introduced as PX 19D, in which Zellner's body is at 26
a 45-degree angle to the ground, shows four troopers touching 27

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Zellner: Summerlin and Parker having hold of his arms, with most of 1
their body mass behind Zellner; Drew with his hand on Zellner's back 2
(see Tr. 678); and Major Weber with his left arm fully extended, 3
leaning toward Zellner with his hand on Zellner's right shoulder. 4
Zellner and Reverend Davis testified that PX 19D shows the precise 5
point at which Zellner had been grabbed and was being taken to the 6
ground, and the positions and postures of all the persons shown in 7
that picture are entirely consistent with the testimony that Zellner 8
was grabbed from behind and was pulled and pushed to the ground. 9
The jury found "[t]hat the events surrounding plaintiff's arrest, 10
particularly grabbing him, . . . occurred substantially as plaintiff 11
contends" (Special Verdict Answer 1 (emphasis added)). Zellner's 12
being "grabbed from behind and pushed" and "pulled" down is not 13
inconsistent with the finding that he had not been subjected to the 14
more violent action of being "throw[n]" down. 15
Further, the evidence contradicts the proposition that 16
Zellner crouched, squatted, or otherwise moved downward in a way 17
that could reasonably have been interpreted as an attempt to sit 18
down. All of the troopers who testified at trial testified that 19
Zellner dropped to the ground and actually sat. Major Weber, who 20
was standing 6-8 inches from Zellner, testified that Zellner 21
"dropped to the ground" (Tr. 134) "in a split second" (id. at 135). 22
No trooper testified that Zellner, instead of actually sitting, had 23
made a crouching, squatting, or other motion that could have been 24
interpreted as an attempt to sit. Having discredited the troopers' 25
actual testimony that Zellner in fact sat, the jury was not required 26
to infer that Zellner had instead made some lesser movement that no 27

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trooper described. 1
Moreover, consistent with the absence of any testimony by 2
the troopers that Zellner had crouched, squatted, or made any other 3
such movement, Zellner's witnesses testified that Zellner was simply 4
standing there when he was grabbed by the troopers. Wright 5
testified that Zellner was "standing," doing "[n]othing." (Tr. 6
318.) Reverend Davis testified to her observation that, other than 7
drinking coffee, "he wasn't doing anything." (Id. at 58.) And 8
Gumbs, when asked what Zellner "was doing with his body" before he 9
was grabbed, testified that Zellner "was standing there," not 10
"sitting or anything else." (Id. at 307 (emphasis added).) 11
The factual proposition that Zellner had made some 12
movement that could reasonably have been interpreted as an attempt 13
to sit in the path of the truck is thus inconsistent with the 14
evidence and is a proposition that the jury, even if asked, would 15
not have been required to accept--especially in light of its 16
conclusions that the version of the facts presented by the troopers 17
was not credible and that defendants' treatment of Zellner warranted 18
the imposition of punitive damages. 19
In sum, as the jury was entitled to credit Zellner's 20
testimony and that of his witnesses that he had done nothing but 21
stand and talk to Major Weber when he was grabbed and pushed and 22
pulled down by the troopers, the jury was not compelled--and hence 23
the court was not permitted--to find that Zellner had made some 24
downward movement on his own. Without the fact of such a movement, 25
there was nothing for defendants to interpret in a way that gave 26
them even arguable probable cause. 27

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We note that it is not entirely clear that the district 1
court found that the "crouching or squatting motion" it attributed 2
to Zellner occurred during his conversation with Major Weber, for 3
the court stated that that movement was made "at some point," 399 4
F.Supp.2d at 159. And defendants seem to suggest that two such 5
motions are shown in a seven-second segment of the videotape before 6
Zellner and Major Weber met. (See, e.g., Defendants' brief on 7
appeal at 6 (Zellner "bent down twice . . . and then walked forward 8
to talk to Major Weber").) There are two principal problems with 9
such an interpretation. First, that segment of the videotape shows 10
Zellner bending forward (to put his coffee mug down briefly while he 11
closed his coat, Zellner testified), not making a squatting or a 12
crouching motion. Second, even if bending forward could reasonably 13
be considered a squatting or a crouching motion, there is no 14
evidence in the record that any trooper, at the time of Zellner's 15
arrest, was aware of that motion. The trooper who had been 16
instructed by Major Weber to activate the video camera did not 17
testify at trial; there is thus no evidence that the camera was 18
manned and that the events it captured on tape were seen by that 19
trooper contemporaneously. Nor did any of the troopers who 20
testified at trial claim to have seen Zellner's bending movement. 21
Although Major Weber testified at trial that he interpreted 22
Zellner's bending forward as practicing sitting down and instructing 23
the crowd on how to sit down (see Tr. 118-20), Major Weber plainly 24
did not see that movement when it occurred. Zellner's bending 25
motion occurred at 13:19:20 to 13:19:26 on the videotape, which was 26
several minutes before Zellner and Major Weber met. Major Weber 27

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testified that he first saw Zellner when the two were just five feet 1
apart, and their conversation ensued immediately. (See id. at 172.) 2
Major Weber's first inkling that Zellner had ever bent down came 3
upon his viewing the videotape at trial. (See Tr. 120 ("I believe 4
after seeing this video that was a practice run . . . .") (emphasis 5
added).) As discussed in Part II.A.2. above, however, the existence 6
of both probable cause and arguable probable cause must be assessed 7
on the basis of "the facts known to the officer[s] at the time of 8
the arrest," Coons, 284 F.3d at 441; see, e.g., Hunter, 502 U.S. at 9
228; Anderson v. Creighton, 483 U.S. at 641; Cerrone, 246 F.3d at 10
202. Zellner's action in bending to put his coffee mug down and 11
then to pick it up, which no trooper claimed to have seen, provided 12
no basis for a finding of either probable cause or arguable probable 13
cause. 14
b. Disorderly Conduct Under §§ 240.20(6) and (7) 15
Defendants' contention that they had probable cause or 16
arguable probable cause to arrest Zellner for violating two 17
uncharged subsections of New York's disorderly conduct statute fares 18
no better. Those subsections provide that "[a] person is guilty of 19
disorderly conduct when, with intent to cause public inconvenience, 20
annoyance or alarm, or recklessly creating a risk thereof," 21
6. He congregates with other persons in a 22
public place and refuses to comply with a lawful 23
order of the police to disperse; or 24
7. He creates a hazardous or physically 25
offensive condition by any act which serves no 26
legitimate purpose. 27
N.Y. Penal Law §§ 240.20(6), (7) (emphases added). 28

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As to subsection (6), defendants do not cite to any 1
evidence in the record to show that Zellner was given any order 2
within the scope of § 240.20(6). Zellner testified that he was not 3
ordered to do anything. Reverend Davis, who was standing no more 4
than 10 feet away from Zellner and Major Weber while they were 5
conversing, testified that she did not hear any of the troopers 6
given Zellner an order. Major Weber did not testify that he or any 7
other trooper gave Zellner an order, and the other troopers did not 8
testify that they gave Zellner any order. The record does not 9
support the contention that there was probable cause--or that any 10
reasonably competent trooper could have concluded that there was 11
probable cause--to arrest Zellner for violating subsection (6). 12
As to subsection (7)--"creat[ing] a hazardous . . . 13
condition by any act which serves no legitimate purpose"-- 14
defendants' probable cause and arguable probable cause contentions 15
are doubly flawed. First, defendants point to no evidence to 16
support a reasonable belief that Zellner himself created any 17
"hazardous condition." They assert in their brief on appeal that 18
after the pickup truck arrived at the demonstration site and began 19
to make a left turn into the driveway, "Zellner walked into the 20
crowd that was in the direct path of the truck" (Defendants' brief 21
on appeal at 33). However, as discussed in the preceding section, 22
that characterization of Zellner's actions is contradicted by the 23
testimony of Reverend Davis and by the videotape showing Zellner 24
moving away from the road. 25
Second, we cannot say, based on the record before us, that 26
a reasonable officer could have believed that Zellner's conversation 27

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with Major Weber "serve[d] no legitimate purpose." We must accept 1
as true Zellner's testimony that he was quietly and respectfully 2
conveying information to the officer in charge as to the imminent 3
arrival of a court injunction to halt the continuation of 4
construction and was asking for patient and evenhanded treatment in 5
the interim. The initiation of such a 20-or 30-second conversation 6
by the co-chair of the Town's Anti-Bias Task Force plainly has a 7
legitimate purpose, and no reasonably competent officer could have 8
concluded otherwise. 9
c. Interference With a Governmental Function, § 195.05 10
Section 195.05 of the Penal law, invoked by defendants in 11
their posttrial motion and on this appeal, provides in part that 12
[a] person is guilty of obstructing governmental 13
administration when he intentionally obstructs, 14
impairs or perverts the administration of law or 15
other governmental function or prevents or attempts 16
to prevent a public servant from performing an 17
official function, by means of . . . interference 18
. . . . 19
N.Y. Penal Law § 195.05. Defendants suggest that they would have 20
had probable cause or arguable probable cause to arrest Zellner 21
under this section for "intentionally obstruct[ing], impair[ing] or 22
perverting the State Troopers' ability to manage the situation." 23
(Defendants' brief on appeal at 36-37 (internal quotation marks 24
omitted).) They argue that 25
even if Zellner did not make a movement that 26
reasonably could have been interpreted as an attempt 27
to sit down, it would not have been unreasonable for 28
an officer to believe that he had probable cause to 29
arrest Zellner based on: (1) the increasingly 30
dangerous situation with a crowd of people causing a 31
truck to stop on a two-lane public road and children 32

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standing, walking, and running near the truck and 1
the road; (2) Zellner's apparent influence on the 2
crowd; and (3) Zellner's interference with Major 3
Weber's ability to control the situation by engaging 4
Major Weber at the moment he was trying to diffuse 5
[sic] the situation, standing in a way that forced 6
Major Weber to turn his back on the road, and urging 7
Major Weber not to take any action. 8
(Defendants' brief on appeal at 37.) The record does not include 9
sufficient evidence to support these assertions. 10
First, as noted above, the record does not establish that 11
Zellner himself was in the truck's direct path. No matter how tense 12
that situation, defendants were not entitled to arrest Zellner 13
unless there was probable cause to believe that Zellner had broken 14
the law. Second, there was no evidence at trial as to Zellner's 15
influence--or apparent influence--on the crowd. Major Weber 16
testified that he did not recognize Zellner as one of the protestors 17
(see Tr. 172); and there was no evidence in the record that any of 18
the troopers had knowledge or information sufficient to give them a 19
reasonable belief that Zellner had influence over the protestors. 20
Third, there was no evidence that Zellner's conversation with Major 21
Weber--lasting 20-30 seconds by Major Weber's own account-- 22
interfered with the police function in any way. Major Weber 23
indicated that he had some 20 troopers on the scene (see Tr. 96); 24
Weber himself was giving orders to a captain who was marshaling the 25
troopers to deal with the truck, and the captain "proceeded to try 26
to get the truck[] in." (Id. at 134.) Reverend Davis testified 27
that when the crowd around the truck was ordered to disperse, it did 28
so. (See Tr. 80.) In the meantime, Major Weber embarked on a 29
thorough explanation to Zellner as to the builders' desire to "leave 30

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the scene to go to other projects for the next thirty days," and 1
their "need[ for] some of their equipment," for "construction 2
projects," and that the purpose of the incoming truck was "to refuel 3
equipment so they could leave" (id. at 133-34), an explanation whose 4
expansiveness suggests that the troopers did not have a reasonable 5
belief that Zellner was interfering with the performance of their 6
duties. 7
On the existing record, it would not be objectively 8
reasonable for any reasonably competent officer to believe that the 9
initiation by the co-chair of the Town's Anti-Bias Task Force of a 10
20- or 30-second conversation with the major in charge of a highly 11
structured team of some 20 troopers, respectfully informing the 12
major of the imminent arrival of an injunction and asking for 13
patience and evenhanded treatment until its arrival, constitutes an 14
obstruction of governmental administration. 15
B. Zellner's Rule 59 Motion for a New Trial 16
Zellner contends that the district court erred in denying 17
his motion for a new trial on his excessive force claim. In that 18
motion, Zellner argued, citing Atkins v. New York City, 143 F.3d 19
100, that the jury should have been instructed that if it found he 20
had been arrested without probable cause, it must find that any 21
force used by defendants in the course of that arrest was excessive 22
and thus must return a verdict in his favor on the excessive force 23
claim. The district court denied the motion on the principal 24
grounds that Zellner had not requested such an instruction and that 25
Atkins was not intended to stand for that proposition. We agree 26

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with these rulings. 1
Zellner's Initial Request for Jury Instructions, filed 2
November 11, 2004, did not request such an instruction, and we have 3
not seen any indication in the record that Zellner filed a 4
subsequent request. Although Zellner asserts on appeal that he "had 5
made known his views regarding Atkins" (Zellner's brief on appeal at 6
40 n.7), he cites only a letter from his attorney and a statement at 7
the charging conference. The letter, however, cites Atkins only as 8
supporting Zellner's "opposition to Defendants' 50(a) Motion, made 9
during trial on November 18, 2004." (Letter from Zellner's counsel 10
to the court dated November 19, 2004.) At the cited pages of the 11
charging conference, Zellner's counsel stated, somewhat cryptically, 12
that "[t]he issue there, Judge, is whether or not, if indeed there 13
was or was not probable cause, any force was reasonable or 14
unreasonable." (Tr. 544.) Counsel then proceeded to state that, 15
"[i]f indeed there was no basis for the arrest, and if indeed the 16
jury finds that there was no probable cause for the arrest, any form 17
of force would be unauthorized (id. at 545). However, we do not see 18
anywhere in the colloquy a request that the jury be so instructed or 19
any citation to Atkins. 20
Further, Atkins does not stand for the proposition that 21
Zellner attributes to it. In Atkins, the jury found both that the 22
plaintiff had been arrested without probable cause and that the 23
officers had used excessive force in the arrest; however, the jury 24
awarded only nominal damages despite undisputed evidence of serious 25
injury. We ruled that where the jury has found a constitutional 26
violation and there is no genuine dispute that the violation 27

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resulted in some injury to the plaintiff, the plaintiff is entitled 1
as a matter of law to an award of compensatory damages. See, e.g., 2
Kerman, 374 F.3d at 124 (describing Atkins). Although there is 3
language in the Atkins opinion to the effect that, given the absence 4
of probable cause there was never a time when the use of force was 5
lawful, see Atkins, 143 F.3d at 103, the fact is that the jury in 6
Atkins had found that excessive force was used, and we have ruled 7
that the opinion does not stand for the proposition that in the 8
absence of probable cause for an arrest, any force that was used in 9
making the arrests was excessive, see Papineau v. Parmley, 465 F.3d 10
46, 62 (2d Cir. 2006). 11
Accordingly, the district court properly denied Zellner's 12
motion for a new trial on his excessive force claim. 13
CONCLUSION 14
We have considered all of the parties' arguments in 15
support of their respective positions on this appeal and, except for 16
concluding that the district court erred in granting judgment as a 17
matter of law in favor of defendants on the basis of qualified 18
immunity, we have found them to be without merit. For the reasons 19
stated above, we affirm so much of the judgment as dismissed 20
Zellner's claim alleging the use of excessive force. We reverse so 21
much of the judgment as dismissed his § 1983 claims against Major 22
Weber and Trooper Summerlin for false arrest and malicious 23
prosecution, and we remand for entry of an amended judgment 24
reinstating the jury's verdict with respect to those claims, and for 25

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such further proceedings as may be appropriate. 1
Zellner is also entitled to recover costs, including a 2
reasonable attorney's fee, see 42 U.S.C. § 1988, in connection with 3
the portion of this appeal as to which he is the prevailing party, 4
see, e.g., Cohen v. West Haven Board of Police Commissioners, 638 5
F.2d 496, 506 (2d Cir. 1980); the amount is to be determined by the 6
district court. 7

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