Second Circuit Upholds Jury Verdict that Repeatedly Punching Unarmed, Non-Menacing Teenager is Excessive Force

In O’Hara v. City of New York et al. (Summary Order dated June 18, 2014), the Second Circuit upheld a jury’s verdict that defendant police officer (McAvoy) used excessive force in arresting plaintiff (O’Hara) in violation of the Fourth Amendment (asserted through 42 USC 1983) and committed state-law battery.

It held:

[I]f we assume, as we must, that in effectuating O‘Hara‘s arrest for a relatively minor matter, McAvoy—who was one of six armed officers on the scene—punched O‘Hara in the face without provocation and then proceeded to punch him repeatedly after the 17-year old fell to the ground, we conclude that a reasonable jury could have found excessive force.

Moreover, the court agreed “that no reasonable officer confronting the circumstances of this case, viewed most favorably to [plaintiff] O‘Hara, could have thought that the law authorized him repeatedly to punch an unarmed, non-menacing 17-year old in effecting an arrest.”

It also rejected McAvoy’s “resisting arrest” justification for the use of force:

McAvoy emphasizes the jury finding that O’Hara was “struggling” when McAvoy punched him, arguing that a reasonable officer might have understood O’Hara to be resisting arrest. But O’Hara testified that he was struggling to avoid McAvoy’s blows, and we must assume the jury credited that explanation. In such circumstances, McAvoy, as well as any reasonable officer in his position would have understood that it was his own punches, not the arrest, that O’Hara was struggling against. … The fact that the jury did not hold McAvoy liable for false arrest does not, by itself, mean that it found O’Hara to have resisted arrest, or McAvoy reasonably to have believed that he was confronting such resistance. In the absence of such findings, McAvoy cannot demonstrate that a reasonable officer in his position would have understood that it was necessary to punch O’Hara repeatedly to take him into police custody. 

The court thus affirmed the district court’s denial of qualified immunity.

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