Appeal by plaintiff from a judgment awarding damages against a police officer for false arrest and malicious prosecution after a jury trial. The jury also found that neither of two arresting officers had violated 42 U.S.C. § 1983. The United States District Court for the Southern District of New York, Mary Johnson Lowe, Judge, had earlier dismissed plaintiff's tort claims against the officers' employer, the alleged complainant, and the complainant's employer. Judgment affirmed in part and reversed in part and cause remanded.
Before: LUMBARD, OAKES and CARDAMONE, Circuit Judges.
Five years ago, Benjamin F. Raysor, Jr., was arrested for possession of stolen property while seeking to return two bottles of vitamin pills without the sales slip to the Cornucopia Health Foods Store ("Cornucopia"), located in the World Trade Center. After the case against Raysor was dismissed on the prosecutor's motion for want of proof, Raysor brought suit for violation of his civil rights under 42 U.S.C. § 1983 (1982) and for false arrest and malicious prosecution under state law against Judith Fox, both personally and as owner of Cornucopia; the store's other owners, Ms. Fox's husband Larry Fox, Larry Manheimer, and Nature Bar Health Foods, Inc.; the two arresting officers, Officer Nathaniel Simpson and Sergeant Michael Vergura; and the officers' employer, the Fort Authority of New York and New Jersey. After a jury trial, judgment was entered in the United States District Court for the Southern District of New York, Mary Johnson Lowe, Judge, in favor of Raysor on his state tort claims in the amount of $16, the approximate cost of the pills, against Sergeant Vergura, the chief arresting police officer. Raysor's section 1983 claim and all of his claims against the other defendants were either dismissed or decided in favor of the defendants. On appeal, we reverse and remand for a new trial because the verdict was inconsistent and the damages inadequate as well as inconsistent and the damages inadequate as well as inconsistent with the theory of relief sought, perhaps owing to deficiencies in the charge. We also reverse as to the dismissal of the tort claims against Officer Simpson and the Port Authority. We affirm the dismissal of the health food store of defendants Judith Fox, Larry Fox and Nature Bar Health Foods, Inc.*fn1
It was undisputed that on September 5, 1980, between 12:30 and 1:00 p.m., Raysor requested a refund for two bottles of vitamin tablets from defendant Judith Fox in her capacity as acting cashier for Cornucopia. Raysor had the vitamins in his possession but no sales slip, and a dispute arose between him and Ms. Fox.
Raysor and Ms. Fox related very different versions of their dispute at trial. Raysor claimed that Ms. Fox accused him of stealing and that they argued over ownership of the vitamin bottles. Ms. Fox either making any such accusation or arguing over ownership of the vitamins. Instead, she testified that she merely followed store policy by refusing to give a refund without proof of purchase, while Raysor cursed and threatened her without provocation, calling her a "bitch" and saying that if she were a man he would punch her in the face. These remarks Raysor in turn denied making. In addition, a pretrial stipulation and order stated that Raysor was never profane during the altercation and did not physically or orally menace or threaten anyone.
In any vent, the dispute grew so heated that Ms. Fox called the Port Authority police, telling them, according to her testimony, "there's a man causing a ruckus who may or may not have taken vitamins. Please come up he's threatening me." Vergura responded.*fn2 According to Officer Simpson, the first to arrive on the scene, Ms. Fox told him the vitamin pills were her property. Simpson then asked Raysor to accompany him to the Port Authority police desk, downstairs in the World Trade Center, for questioning. Anxious to set matters straight, Raysor went willingly.
Shortly thereafter, the police also asked Ms. Fox to come downstairs for separate questioning. As Vergura recalled, Ms. Fox said that she had seen Raysor in the aisle, near the vitamin pills before he presented them for refund or exchange, that "the pills belong to the store, he didn't come in here with them pills," and that if Raysor would give the pills back she would not press charges. All witnesses agreed that when Vergura then told Raysor he was free to leave if he surrendered the vitamins, Raysor steadfastly insisted that the pills were his and that he was not going to give them up as a matter of principle. Vergura testified, in addition, that he relayed Raysor's position to Ms. Fox and she responded, "No, I put up with too much abuse, I'll let him walk, but he has to give the pills back." Ms. Fox, however, remembered saying, "I don't care about any vitamins, I just don't want the man to come back in the store and threaten me, and I do not want to press charges."
At this point Raysor was taken into custody, fingerprinted, photographed and incarcerated in a cell for several hours-he said five and Officer Simpson said three and one-half. Raysor's one telephone call was to a lawyer, a Mr. Greenidge, who came down to the police desk and told Simpson and Vergura that he had seen Raysor in Greenidge's World Trade Center office just before the incident took place and had noticed two bottles of pills in Raysor's briefcase, though according to the police he could not positively identify them as the two bottles from Cornucopia. In a rather curious approach to law enforcement, Sergeant Vergura told Greenidge, as Sergeant Vergura himself testified, that "the only way I could release [Raysor] is if [Greenidge] were absolutely positive that those were the pills in question," and that "unless he could prove to me beyond a doubt that those were the pills in question I would have to go through with the arrest which was already in progress."
Sometime after six o'clock, and after the officers had checked to find out that Raysor had no previous record of arrests or convictions, no outstanding warrants, and no apparent brushes with law enforcement, both officers signed a Desk Appearance Ticket ("DAT") charging Raysor with the offense of criminal possession of stolen property and instructing him to appear in court at 9:30 a.m. on October 22. Upon signing the DAT in acknowledgment of its receipt, Raysor was released. The police vouchered the two bottles of vitamins.
When the calendar in the state court was called, after continuances to November 6, 1980, the Assistant District Attorney moved to dismiss the case "in light of the fact that the People cannot sustain their burden of proof." Raysor, seeking redemption of what he considered his injured reputation, filed a motion pro se that same day to have the case prosecuted by indictment. As he explained to the somewhat surprised court, "My integrity and my honor have been impugned. I want to be completely vindicated." The court denied the motion.
Raysor brought suit for damages in federal court under 42 U.S.C. § 1983 with pendent state claims for false arrest and malicious prosecution. The pro se plaintiff, of course, had not only a lack of trial experience and inability accurately to phrase questions; he also testified and had difficulty as a witness objecting to defense counsel questions. One of the defense attorneys attempted to instruct the witnesses on their duties and behavior, matters which are ordinarily for the trial judge, who quite properly was not reluctant to assert her authority. Another defense lawyer seemed unable to ask on direct examination anything but a leading question, somewhat to the court's consternation. In any event, before the case went to the jury the court dismissed the health food corporation, Manheimer, Mr. and Ms. Fox, and the Port Authority. The court also dismissed, for reasons that are not apparent, the false arrest and malicious prosecution claims against Officer Simpson, but then submitted the civil rights claim against both officers and the false arrest and malicious prosecution claims against Sergeant Vergura on special interrogatories. The jury found neither officer liable on the civil rights claim, but did find Sergeant Vergura liable for false arrest and malicious prosecution, though only in the sum of $16.00, some $.25 less than the cost of the two bottles of vitamin pills taken at the time of arrest. This appeal followed.
It is clear that the section 1983 claim against the Port Authority was properly dismissed because there was no showing that the injury was caused by execution of a custom or policy of the Port Authority, as required by Monell v. Department of Social Services, 436 U.S. 658, 691-95, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). But the actions for false arrest and malicious prosecution may proceed against the Port Authority on a theory of respondent superior, Johnson v. Town of Colonie, 102 A.D.2d 925, 926, 477 N.Y.S.2d 513, 514 (1984), since New York and New Jersey have both waived the Port Authority's immunity from such suits, see N.Y. Unconsol. Laws § 7101 (McKinney 1979). The Port Authority therefore should not have been dismissed on the state law claims.
The state law claims against Officer Simpson were dismissed because he made the arrest at Sergeant Vergura's order. Strangely, although the court properly recognized Simpson's potential liability under section 1983 both for making the arrest without a good faith belief "that the order imparted to him by Sergeant Vergura was a lawful order" and for knowingly making false or incomplete statements on the accusatory instrument, if ignored the general tort rule that an agent is not relieved of liability merely because he acted at the command of the principal, see Restatement (Second) of Agency ...