Appeal from a judgment of the District Court for the District of Connecticut (Warren W. Eginton, Judge) finding defendants liable and awarding plaintiff damages, after a jury trial, in a civil rights action brought pursuant to 42 U.S.C. § 1983. Affirmed as to Fiorillo and Krzeminski; reversed and remanded for a new trial as to Conners.
Jon O. Newman, Circuit Judge, Van Graafeiland, Meskill, Circuit Judges. Judge Meskill concurs with a separate opinion.
JON O. NEWMAN, Circuit Judge:
Defendant police officers Anthony Krzeminski, Richard Fiorillo, and James T. Conners appeal from a judgment of the District Court for the District of Connecticut (Warren W. Eginton, Judge) entered after a jury verdict finding all of them liable under 42 U.S.C. § 1983 (1982) for using excessive force against the plaintiff and finding Sergeant Fiorillo liable for denying him medical attention in violation of his constitutional rights. The jury awarded plaintiff $80,000 in compensatory damages on the excessive force count and $100 for the denial of medical care. The jury also assessed punitive damages of $125,000 against Fiorillo, $60,000 against Krzeminski, and $35,000 against Conners. The defendants, jointly represented now as at trial by an assistant corporation counsel of the City of New Haven, contend on appeal that the trial court erred by: (1) permitting plaintiff to present evidence of a prior section 1983 judgment entered against Fiorillo for use of excessive force; (2) refusing to withdraw from the jury, and to set aside the verdict on, the claim that Conners participated in the use of excessive force; (3) refusing to instruct the jury that the City of New Haven was not a defendant in the action, and (4) denying defendants' motion to set aside the damage awards as excessive. We affirm the judgment against Fiorillo and Krzeminski, but reverse and order a new trial on the excessive force claim against Conners.
On the weekend of July 4, 1981, plaintiff-appellee Neil J. O'Neill, then a Captain in the United States Army, was home on leave visiting his family in New Haven, Connecticut. O'Neill went with a friend to a New Haven nightclub called Toad's Place on the night of the fourth. In the course of the evening, O'Neill was ejected from the club for annoying a waitress. He was then arrested by New Haven police officers for breach of peace, handcuffed, and transported in a police van to the station.
In the station's detention area, O'Neill identified himself as an Army Captain. His attitude apparently attracted the disapproving attention of then Sergeant Fiorillo, the detention room supervisor, and Officer Krzeminski, who was on duty at the time. Plaintiff testified that these police officers shoved him and swore at him, prompting him to ask Krzeminski, "What are you, the gestapo? Is this Nazi Germany?" At this point O'Neill, still in handcuffs, was struck three times in rapid succession on his face and head. It is undisputed that at least one blow was struck by Fiorillo, who testified that he thought he had broken O'Neill's nose, and at least one more was struck by Krzeminski using a blackjack. Officer Krzeminski then dragged O'Neill by the throat across the detention area, castigating him for "bleeding all over my floor." Officer Conners observed these events without interceding on O'Neill's behalf.
Disoriented, O'Neill was taken to a holding cell. Soon thereafter, an unidentified man in civilian clothing entered the cell, examined O'Neill, and commented to an unidentified observer that O'Neill needed medical attention. Sergeant Fiorillo subsequently entered the cell and screamed repeatedly at the plaintiff, "Are you refusing medical treatment?" Eventually, plaintiff was driven in a police van to Yale-New Haven Hospital where he was treated for a fractured nose, lacerations to his forehead and eyebrow, and tenderness in his throat.
1. The Prior Excessive Force Judgment. Similar act evidence was offered and received under Fed. R. Evid. 404(b) against Fiorillo to show that he had the intent to use excessive force when he struck the plaintiff. The plaintiff initially sought to introduce evidence of two prior section 1983 judgments against Fiorillo, one for an unlawful arrest and one for use of excessive force. The trial judge refused to permit any evidence with respect to the unlawful arrest judgment on grounds of relevance. Upon determining that the second judgment concerned use of excessive force during an incident less than a month before the O'Neill incident, the trial judge allowed plaintiff to establish both the existence of the second judgment and the date of the underlying incident.
This panel is divided in its views on the admissibility of the prior similar act evidence; the writer believes that the evidence was admissible,*fn1 Judge Meskill believes admitting the evidence was error, but harmless in view of the strength of the other evidence against Fiorillo, and Judge Van Graafeiland believes it is unnecessary to decide whether error occurred, since he concludes that if there was error, it was harmless. Though split three ways in its approach, the panel is thus unanimous in concluding that the admission of the similar act evidence is not a sufficient ground for disturbing the judgment against Fiorillo.
2. Conners' Liability. We turn next to Officer Conners' contention that the evidence does not support the imposition of liability against him. A law enforcement officer has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers. See Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir. 1986) (excessive force); Webb v. Hiykel, 713 F.2d 405, 408 (8th Cir. 1983) (excessive force); Gagnon v. Ball, 696 F.2d 17, 21 (2d Cir. 1982) (false arrest); Bruner v. Dunaway, 684 F.2d 422, 426 (6th Cir. 1982), cert. denied, 459 U.S. 1171, 103 S. Ct. 816, 74 L. Ed. 2d 1014 (1983) (excessive force); Byrd v. Brishke, 466 F.2d 6, 10-11 (7th Cir. 1972) (excessive force); Skorupski v. County of Suffolk, 652 F. Supp. 690, 694 (E.D.N.Y. 1987) (excessive force).
In this case, the claim that Conners became liable for use of excessive force by failing to intercede must be assessed separately with respect to the acts of Fiorillo and Krzeminski in striking O'Neill and the act of Krzeminski in dragging O'Neill across the floor by his throat. Even when the evidence is viewed in the light most favorable to the plaintiff, there is insufficient evidence to permit a jury reasonably to conclude that Conners' failure to intercede was a proximate cause of the beating. The three blows were struck in such rapid succession that Conners had no realistic opportunity to attempt to prevent them. This was not an episode of sufficient duration to support a conclusion that an officer who stood by without trying to assist the victim became a tacit collaborator. With respect to the subsequent dragging of O'Neill across the floor, however, the case against Conners is adequate to create an issue of fact for the jury. Having seen the victim beaten, he was alerted to the need to protect O'Neill from further abuse. Though not a guarantor of O'Neill's safety in the face of brutality administered by other officers, Conners can be found liable for deliberately choosing not to make a reasonable attempt to stop Krzeminski.
The insufficiency of the evidence to support one of the two theories on which Conners was alleged to be liable for use of excessive force requires consideration of the appropriate disposition of his appeal on this point. Normally, when two claims have been submitted to a jury and one of them should not have been submitted, a general verdict in favor of the claimant cannot stand, since it is not possible, in the absence of special interrogatories, to know upon which claim the jury rested its decision. See United New York and New Jersey Sandy Hook Pilots Ass'n v. Halecki, 358 U.S. 613, 619, 3 L. Ed. 2d 541, 79 S. Ct. 517 (1959); Morrissey v. National Maritime Union, 544 F.2d 19, 26-27 (2d Cir. 1976). ...