Franco v. Gunsalus ( 2023 )

22-71 (L)
Franco v. Gunsalus
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on
or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1
and this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this
court, a party must cite either the Federal Appendix or an electronic database (with the notation
“summary order”). A party citing a summary order must serve a copy of it on any party not
represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 23rd day of May, two thousand twenty-three.
PRESENT: Guido Calabresi,
Steven J. Menashi,
Eunice C. Lee,
Circuit Judges.
____________________________________________
MARIO FRANCO,
Plaintiff-Appellant-Cross-Appellee,
v. Nos. 22-71, 22-339
POLICE OFFICER JOHN GUNSALUS, 0453, ALL SUED
HEREIN IN THEIR CAPACITY AS INDIVIDUALS,
POLICE OFFICER SHAWN KELLY, 279, ALL SUED
HEREIN IN THEIR CAPACITY AS INDIVIDUALS,
Defendants-Appellees-Cross-Appellants. *
____________________________________________
* The Clerk of Court is directed to amend the caption as set forth above.
For Plaintiff-Appellant-Cross-Appellee: STEPHEN BERGSTEIN, Bergstein &
Ullrich, New Paltz, NY (Fred B.
Lichtmacher, Law Office of Fred
Lichtmacher, PC, New York, NY, on
the brief).
For Defendants-Appellees-Cross-Appellants: JOHN G. POWERS, MARY L.
D’AGOSTINO, Hancock Estabrook
LLP, Syracuse, NY.
Appeal from a judgment of the United States District Court for the Northern
District of New York (Scullin, J.).
Upon due consideration, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court is AFFIRMED.
Mario Franco brought a Section 1983 lawsuit against Syracuse police officers
John Gunsalus and Shawn Kelly, alleging violations of Franco’s constitutional
rights following the dispersal of a July 4th block party in Syracuse, New York. A
jury sided with Franco, awarding him compensatory damages for excessive force,
false arrest, and malicious prosecution. Franco appeals, taking issue with the
district court’s decision not to instruct the jury on punitive damages. The officers
cross appeal, arguing that they are entitled either to qualified immunity or to
judgment as a matter of law on Franco’s Section 1983 claims.
We affirm the judgment of the district court. Franco did not properly
preserve his objection to the district court’s decision not to issue a punitive
damages instruction. Accordingly, we review this aspect of the district court’s
judgment under the plain-error standard, and we conclude that the decision was
not plainly erroneous. In addition, we conclude—based on the record at trial—that
a reasonable jury could have concluded that the officers were liable and not
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entitled to qualified immunity. We assume the parties’ familiarity with the
underlying facts and procedural history.
I
Because Franco “failed to preserve [his] objection to the district court’s
decision not to include a punitive damages charge,” we review “solely for plain
error.” Emamian v. Rockefeller Univ., 971 F.3d 380, 387 (2d Cir. 2020). Under this
standard of review, we do not agree that the district court’s decision on the
punitive damages instruction was plainly erroneous.
A
“A party who objects to ... the failure to give an instruction must do so on
the record, stating distinctly the matter objected to and the grounds for the
objection.” Fed. R. Civ. P. 51(c)(1). But if a party fails to make the objection
properly, “[a] court may consider a plain error in the instructions ... if the error
affects substantial rights.” Fed. R. Civ. P. 51(d)(2) (emphasis added). We have
elaborated on this standard for district court decisions on punitive damages
instructions, explaining that “[t]o constitute plain error in these circumstances, a
court’s action must affect substantial rights, contravene an established rule of law,
and go to the very essence of the case.” Emamian, 971 F.3d at 388 (internal quotation
marks omitted).
Franco did not properly object to the district court’s decision on his
requested punitive damages instruction. In a set of proposed jury instructions,
Franco had asked for a punitive damages charge. The district court rejected the
proposed instruction, stating that it “decided not to charge on punitive damages”
because “given the facts and circumstances of the case … I don’t think it’s an
appropriate charge.” J. App’x 560. In response, Franco’s counsel stated: “Plaintiff
does object to your omitting that charge, your Honor.” Id.
That objection was insufficient to preserve Franco’s punitive damages
argument on appeal. Under Rule 51, a party must “stat[e] distinctly ... the grounds
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for the objection.” Fed. R. Civ. P. 51(c)(1); see also Lopez v. Tyson Foods, Inc., 690 F.3d
869, 876 (8th Cir. 2012) (“An objection must be specific, precise enough to allow
the district court to address any problems and avoid a retrial. A general objection
to a jury instruction, even when it encompasses a specific objection, is
insufficient.”) (quoting Bauer v. Curators of the Univ. of Mo., 680 F.3d 1043, 1045 (8th
Cir. 2012)). Franco’s counsel failed to provide a reason for his objection, simply
stating that “Plaintiff does object” to the omission of a punitive damages charge.
The objection did not provide the district court an opportunity to address any
arguments against its decision and for that reason failed to comply with Rule 51(c).
B
Because Franco forfeited his argument regarding the punitive damages
instruction, we consider whether the district court’s omission of the charge
constituted plain error. See Emamian, 971 F.3d at 387; see also Fed. R. Civ. P. 51(d)(2).
It did not.
“A punitive damages instruction is appropriate when the plaintiffs have
produced evidence that the defendant’s conduct is motivated by evil motive or
intent, or when it involves reckless or callous indifference to the federally
protected rights of others.” Cameron v. City of New York, 598 F.3d 50, 69 (2d Cir.
2010) (internal quotation marks and alteration omitted). Under this standard, a
district court should issue a punitive damages instruction “when the plaintiffs
have produced evidence of a positive element of conscious wrongdoing or
malice.” Id. (internal quotation marks omitted).
Franco makes two arguments in support of a punitive damages instruction.
As to the excessive force claim, Franco states that punitive damages would be
appropriate because Gunsalus subjected him to “[g]ratuitous and unprovoked ...
force.” Appellant-Cross-Appellee Br. 22. As to the false arrest and malicious
prosecution claims, Franco argues that punitive damages would be appropriate
because “the jury ... found the officers lacked probable cause, and its special
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interrogatories demonstrate that Gunsalus had no reason to believe that Franco
had ignored any verbal commands to disperse.” Id. at 29.
Reviewing for plain error, we disagree. The district court did not contravene
an established rule of law when it decided there was “no factual predicate in the
trial record” for the charge. Franco v. Gunsalus, No. 16-CV-634, 2022 WL 93570, at
*10 (N.D.N.Y. Jan. 10, 2022) (quoting McCardle v. Haddad, 131 F.3d 43, 52 (2d Cir.
1997)). It properly relied on the legal standard for punitive damages given in
Cameron, requiring “evidence of a positive element of conscious wrongdoing or
malice.” Id. (internal quotation marks omitted). And the district court’s conclusion
that Franco failed to adduce this evidence at trial was not plainly erroneous. The
jury concluded that Gunsalus used excessive force in his apprehension of Franco
and, with respect to false arrest and malicious prosecution, “the jury reasonably
could have concluded that [the officers] did not have probable cause to arrest
[Franco] on any charges” and indeed that “no reasonable officer would have
believed that he had probable cause to arrest [Franco].” Id. at *7, *4. Yet these
findings do not establish Gunsalus’s subjective intent—which Cameron indicates is
required. See also Amid v. Chase, 720 F. App’x 6, 13 (2d Cir. 2017) (describing the
standard as subjective). The jury did not determine whether Gunsalus actually
issued an order of dispersal and whether he thought, even if unreasonably, that
Franco heard such an order and failed to comply. See Franco, 2022 WL 93570, at *4
(“The jury was free to credit Plaintiff’s and these witnesses’ testimonies to
conclude that Defendants either did not order partygoers to disperse or that, for a
variety of reasons, it was unreasonable for Defendants to believe that Plaintiff heard the
order.”) (emphasis added).
Neither an excessive use of force nor an unreasonable belief about probable
cause necessarily entitles a Section 1983 plaintiff to punitive damages. We have
long held that the availability of punitive damages requires more than what is
required for liability under Section 1983. “To accept [the contrary] proposition
would essentially expose a defendant to an award of punitive damages for any
conduct not protected by qualified immunity, and would thereby make the
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availability of punitive damages equal to the availability of compensatory
damages. That proposition is contrary to the principles [of our Section 1983 case
law].” McCardle, 131 F.3d at 53. The district court concluded that Franco had failed
to identify evidence of the officers’ subjective awareness of wrongdoing. On this
record, we cannot say that its determination was plainly erroneous.
II
While we decline Franco’s request to remand the case for a new trial on
punitive damages, we affirm the judgment of the district court as it pertains to
compensatory damages against Officers Gunsalus and Kelly. The officers argue
that the district court erroneously denied their requests for qualified immunity
and for judgment as a matter of law on the three claims for which Franco received
compensatory damages: excessive force, false arrest, and malicious prosecution.
“We review de novo a district court’s decision on a Rule 50(a) motion for judgment
as a matter of law, as well as its decision to grant qualified immunity, and we apply
the same standard as the district court itself was required to apply. Accordingly,
in the context of a Rule 50(a) motion, we must consider the evidence in the light
most favorable to the party against whom the motion was made and give that
party the benefit of all reasonable inferences that the jury might have drawn in his
favor from the evidence.” Jones v. Treubig, 963 F.3d 214, 223-24 (2d Cir. 2020)
(internal quotation marks, alteration, and citations omitted).
We apply “a two-step sequence for resolving government officials’ qualified
immunity claims.” Pearson v. Callahan, 555 U.S. 223, 232 (2009). First, we “must
decide whether the facts that a plaintiff has alleged or shown make out a violation
of a constitutional right.” Id. (citations omitted). Second, if the plaintiff has made
such a showing, we “must decide whether the right at issue was ‘clearly
established’ at the time of defendant’s alleged misconduct. Qualified immunity is
applicable unless the official’s conduct violated a clearly established constitutional
right.” Id. (citation omitted). Here, our inquiry into whether the officers are entitled
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to judgment as a matter of law is coextensive with the first step of the qualified
immunity inquiry. We address each of the three findings of liability in turn.
A
The jury found Gunsalus liable for the use of excessive force. Franco, 2022
WL 93570, at *1. “When a plaintiff alleges excessive force, the federal right at issue
is the Fourth Amendment right against unreasonable seizures.” McKinney v. City
of Middletown, 49 F.4th 730, 739 (2d Cir. 2022) (alteration omitted) (quoting Tolan v.
Cotton, 572 U.S. 650, 656 (2014)). In determining whether force was excessive, we
“balanc[e] the nature and quality of the intrusion on the plaintiff’s Fourth
Amendment interests against the countervailing governmental interests at stake.”
Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010). We have held that a police officer
violates a clearly established Fourth Amendment right when he “use[s] significant
force against an arrestee who is no longer resisting and poses no threat to the safety
of officers or others.” Jones, 963 F.3d at 225. Moreover, it was well established in
our circuit at the time of the altercation “that the use of entirely gratuitous force is
unreasonable and therefore excessive.” Id. (quoting Tracy, 623 F.3d at 99 n.5).
We agree with the district court “that the jury was reasonable in balancing
all of the factors ... and finding that a reasonable officer would not have used the
amount of force [Officer] Gunsalus used when arresting [Franco].” Franco, 2022
WL 93570, at *6. The crimes leading to the arrest—disorderly conduct and second-
degree harassment—were not particularly severe. A reasonable jury could have
concluded, when considering the totality of the circumstances, that Franco did not
pose a threat to Gunsalus or others. The jury was free to credit the testimony of
Franco and other witnesses that Franco did not actively resist arrest or push
Gunsalus. We affirm the judgment of the district court with respect to Franco’s
excessive force claim.
B
The jury also found Gunsalus and Kelly liable for false arrest. Franco, 2022
WL 93570, at *1. To determine whether a defendant violated the plaintiff’s Fourth
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Amendment right not to be subjected to a warrantless arrest without probable
cause, we consider whether the officers had probable cause to make an arrest. For
the purposes of qualified immunity, we ask whether the officers had “arguable
probable cause,” which “exists if either (a) it was objectively reasonable for the
officer to believe that probable cause existed, or (b) officers of reasonable
competence could disagree on whether the probable cause test was met.” Escalera
v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (internal quotation marks omitted).
The officers claim that they had probable cause to arrest Franco for
disorderly conduct or harassment. But we agree with the district court that a
reasonable jury could have determined that no probable cause existed for either
charge. As to disorderly conduct, the jury could have credited the testimony of
those witnesses who said that they did not hear a dispersal order and concluded
that Gunsalus either did not issue the order or had no objective basis to believe
that Franco had heard such an order. Under those circumstances, the officers
would have lacked arguable probable cause to arrest Franco for disobeying a
dispersal order. The jury also could have credited those witnesses who testified
that the car was parked close to the curb and that Franco was not standing in a
way that would have blocked traffic. Under such circumstances, the officers would
have lacked arguable probable cause to arrest Franco for obstructing traffic. As to
harassment, the jury was free to credit the testimony of trial witnesses—including
that of Franco himself—who said that Franco did not push, hit, or otherwise put
his hands on Officer Gunsalus. We affirm the judgment of the district court with
respect to Franco’s false arrest claim.
C
The jury found Gunsalus liable for malicious prosecution. Franco, 2022 WL
93570, at *1. “[T]he Fourth Amendment right implicated in a malicious prosecution
action is the right to be free of unreasonable seizure of the person—i.e., the right to
be free of unreasonable or unwarranted restraints on personal liberty.” Washington
v. County of Rockland, 373 F.3d 310, 316 (2d Cir. 2004). “To prevail on a malicious
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prosecution claim under New York law and federal law, a plaintiff must show:
(1) the commencement or continuation of a criminal proceeding by the defendant
against the plaintiff, (2) the termination of the proceeding in favor of the accused,
(3) the absence of probable cause for the criminal proceeding and (4) actual
malice.” Kee v. City of New York, 12 F.4th 150, 161-62 (2d Cir. 2021) (internal
quotation marks omitted). We have explained in this context that “malice does not
have to be actual spite or hatred, but means only ‘that the defendant must have
commenced the criminal proceeding due to a wrong or improper motive,
something other than a desire to see the ends of justice served.’” Lowth v. Town of
Cheektowaga, 82 F.3d 563, 573 (2d Cir. 1996) (quoting Nardelli v. Stamberg, 44 N.Y.2d
500, 502-03 (1978)). 1
Because a malicious prosecution claim implicates the Fourth Amendment,
“[a] plaintiff asserting a Fourth Amendment malicious prosecution claim under
§ 1983 must ... show some deprivation of liberty consistent with the concept of
‘seizure.’” Washington, 373 F.3d at 316. “We have consistently held that a post-
arraignment defendant who is obligated to appear in court in connection with
criminal charges whenever his attendance is required suffers a Fourth
Amendment deprivation of liberty.” Swartz v. Insogna, 704 F.3d 105, 112 (2d Cir.
2013) (internal quotation marks and alterations omitted). The officers cite a
summary order, Faruki v. City of New York, 517 F. App’x 1 (2d Cir. 2013), for the
proposition that a plaintiff does not suffer a deprivation of liberty when he faces
“no restriction ... other than a requirement [to] appear in court on two occasions.”
Id. at 1. Faruki relies on Burg v. Gosselin, 591 F.3d 95 (2d Cir. 2010), in which we
held that “the issuance of a pre-arraignment, non-felony summons requiring a
later court appearance, without further restrictions, does not constitute a Fourth
Amendment seizure.” Id. at 98. But we need not address how Faruki and Berg
1 The “actual malice” standard for malicious prosecution is thus distinct from the “evil
motive or intent” or “reckless or callous indifference” standard for punitive damages
discussed above.
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interact with the rule articulated in Swartz. To decide this case, it is enough to say
that Franco suffered a deprivation of liberty because he faced a restriction greater
than the one at issue in Faruki. As the district court observed, the jury was able to
conclude that Franco “continually returned to court on a monthly basis before the
case was over” in connection with serious criminal charges. Franco, 2022 WL 93570,
at *7. That restriction constitutes a sufficient deprivation of liberty under Swartz.
A reasonable jury could have concluded that Officer Gunsalus was liable for
malicious prosecution. As to the first and second elements of the test for malicious
prosecution, “[t]he parties stipulated before trial that the criminal charges initiated
against [Franco] were terminated in [Franco’s] favor.” Id. at *6 n.1. And for the
reasons stated above, the jury was free to conclude that probable cause did not
exist for the criminal proceeding at issue here. As we have previously explained,
“[m]alice may be inferred … from the absence of probable cause.” Dufort v. City of
New York, 874 F.3d 338, 353 (2d Cir. 2017). The jury could have made an inference
of malice in this case. We acknowledge that the third and fourth elements are
distinct from one another; a jury cannot infer malice in every case in which
probable cause is lacking. Under New York law, probable cause must be “so scant”
that the inference of malice is justified. De Lourdes Torres v. Jones, 26 N.Y.3d 742,
761 (2016). But here, such an inference was possible because the jury “could have
reasonably credited testimony … that [Officer] Gunsalus appeared to be looking
for a fight.” Franco, 2022 WL 93570, at *7.
* * *
We have considered the parties’ remaining arguments, which we conclude
are without merit. For the foregoing reasons, we AFFIRM the judgment of the
district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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