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In this police misconduct lawsuit, the plaintiff says that correction officers beat him in his cell while he was handcuffed after he refused their directive to pull his hands back from the slot in the cell door. Sounds like a good case. After all, this was a team of officers who entered the cell and, assuming the plaintiff had no weapon, they were able to subdue him without excessive force, right? But the case was dismissed on summary judgment and the Court of Appeals affirms. The case is over.
The case is McGrier v. City of New York, a summary order issued on February 24. The Court of Appeals (Walker, Sack and Sullivan) agrees that "there is some evidence to suggest that one or more of the individual officers applied excessive force against McGrier." So plaintiff is off to a good start. Here's the problem: he named as a defendant officer Robles and the City of New York as defendants. They are not liable.
Robles is not liable because there is no evidence to suggest he was involved in the decision to use force. While you can sue officers over their failure to protect you from the use of force effected by other officers, that only works when the officer standing by had a realistic opportunity to intervene to prevent the harm. That's the rule in Anderson v. Branen, 17 F.3d 552 (2d Cir. 1994). It does not look like Robles was in a position to stop the excessive force. That is a common issue in these cases, as the force often proceeds so quickly that the other officers could not have intervened even if they wanted to.
What about the case against New York City? If you sue the City under Section 1983, you have to show the injuries resulted from a policy or practice of excessive force. We call that Monell liability. Plaintiff's best evidence on this point is a report from the Department of Justice in 2014 that suggests there was a custom of excessive force at Rikers prior to July 2013 as to adolescent inmates. Plaintiff's assault took place in 2013. But that report does not address any pattern of excessive force against adult inmates for that time period. The Court of Appeals says that distinction means that plaintiff cannot show such a pattern against inmates like him, and the case against the City is dismissed.
There's the cocktail party version of a case, and then there's the courtroom version of the case. The cocktail party version makes the case out to be a slam dunk. The courtroom version sees the case dismissed on summary judgment.
So in this case, imagine that someone tells you he was denied a promotion and that one of the decisionmakers once said that he wanted to get rid of the "Black guy" in the division "because he was making too much money." The "Black guy" the supervisor was referring to was plaintiff. At the cocktail party, the reaction would be one of outrage. But the case did not survive summary judgment, even under the New York City Human Rights Law, which favors plaintiffs.
The case is Pierre v. City of New York, a summary order issued on February 10. Plaintiff applied for two promotions. He was denied those positions; he claims the adverse decisions were motivated by racial and age discrimination. One decisionmaker made the comment about getting rid of the "Black guy" because he was making too much money. Even though Pierre was the "Black guy," that comment loses its evidentiary value because the decisionmaker said it one year earlier. That makes it a "stray remark" under employment discrimination jurisprudence.
The judges at oral argument in this case focused on the "too much money" angle. It's not discriminatory to fire someone for that reason. Plaintiff's counsel focused on the "Black guy" angle, and his client's extensive experience for the positions. But that comment took place a year earlier, and courts do not like to second-guess discretionary managerial decisions about whom to promote when all the candidates are qualified for the position. What also hurts plaintiff's case is that management proved the successful candidates had much more experience than plaintiff, and that they were more enthusiastic about the positions than plaintiff was. And, the Court of Appeals (Chin, Calabresi and Raggi) says, plaintiff admitted during his job interview that "he did not view the position of division chief as the 'passion of his life,' instead viewing it as a launching pad for further promotion. This analysis takes care of plaintiff's federal claims.
While the Court of Appeals notes that the City Human Rights Law carries a more favorable burden of proof for plaintiffs, this case fails under the City law as well, and the Court notes that even claims under the City law may be dismissed on summary judgment. Even under the liberal standards guiding the City law, the Court says his claim under that statute fails also.
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