Date: 05-21-2018

Case Style:

Case Number: 17-1039-CV

Judge: Calabresi

Court: United States Court of Appeals for the Second Circuit on appeal from the District of Connectcitu (New Haven County)

Plaintiff's Attorney: Josephine Miller

Defendant's Attorney: James N. Tallberg and Patrick D. Allen

Description: On April 2, 2013, Derrick Bryant brought suit against, inter alia, Officers
Kenneth Egan and John Slezak of the Meriden Police Department, alleging that
they had used excessive force against him in violation of the Fourth Amendment.
After a trial was held and the jury returned a verdict in favor of the officers, Bryant
moved for a new trial under Federal Rule of Civil Procedure 59. On March 31,
2017, the district court granted Bryant’s motion in part. It held the jury’s finding—
that the force used against Bryant inside a holding cell was permissible—to be
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against the weight of the evidence. Egan and Slezak now bring an interlocutory
appeal from the district court’s order of a new trial. Because the issues before us
turn on disputed facts, we dismiss the appeal for lack of jurisdiction.
I.
On March 9, 2011, members of the Meriden Police Department arrested
Bryant as part of a “buy‐and‐bust” drug operation. Bryant had been a passenger
in a car driven by a friend when the car pulled into a liquor store parking lot. After
a monitored police informant entered the car, Meriden police officers surrounded
the vehicle and ordered everyone out of it.
The parties give conflicting accounts as to whether Bryant complied. All
parties agree, however, that a struggle soon broke out, during which Detective
John Cerejo punched Bryant multiple times. During the arrest, Bryant’s pants fell
below his knees, exposing his genitals. Cerejo later testified that, in the course of
the struggle, Bryant unsuccessfully attempted to insert a bag of crack cocaine into
his anal cavity. According to Cerejo, Bryant managed to lodge the bag only
between the cheeks of his buttocks.
Following his arrest, Bryant was held in a cell at the Meriden Police
Department. His hands were cuffed in front of his body and a “spit mask” was
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placed over his face. During Bryant’s confinement, a closed‐circuit video recorded
multiple officers walking in and out of his cell, speaking to him, and trying to
search him. The parties contest what exactly this video shows; we describe only
what is evident. About five minutes into the video, Officer Slezak approached
Bryant, who was being restrained against the wall by Officer Egan. Slezak, who
was carrying a taser, testified at trial that he had brought the device for safety
reasons and to encourage Bryant to submit to a controlled strip search. The
recording shows Slezak bringing the taser close to Bryant. The parties, however,
dispute whether Bryant was tased at that time.
About a minute later, the recording shows Bryant standing against the cell
wall, flanked by Egan and Slezak. Slezak testified that he then observed Bryant
“make a sudden movement to his groin area,” JA 463, at which point Egan quickly
brought Bryant down to the floor. Egan testified that “as [he] took Mr. Bryant to
the ground, Officer Slezak . . . applied the Taser.” JA 400. At the same time, two
other members of the police department rushed into the cell. As Bryant was on the
ground—with his pants down—the officers recovered a bag of crack cocaine.
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II.
On January 19, 2014, Bryant filed an amended complaint in the United States
District Court for the District of Connecticut. He brought claims under 42 U.S.C.
§ 1983 and state law against seven Meriden Police Department officers, including
Egan and Slezak. Bryant alleged, inter alia, that the officers a) had subjected him to
excessive force and an unreasonable strip search at the scene of his arrest; b) had
unlawfully penetrated his anal cavity when searching him in the holding cell; and
c) had gratuitously tased him multiple times while he was kept in the holding cell.
Bryant also brought a Monell claim against the City of Meriden and its chief of
police, asserting that they had failed to implement policies and procedures to
prevent violations like those he had suffered.1 See Monell v. Dep’t of Soc. Serv., 436
U.S. 658 (1978).
On February 27, 2015, the defendants sought partial summary judgment on
Bryant’s Monell claim and on a subset of his claims against individual officers.
They declined to seek summary judgment on Bryant’s § 1983 claims against Egan
and Slezak, conceding that there were “disputed issues of fact which preclude[d]
summary judgment” on those claims. Defs.’ Mem. of Law in Supp. of Mot. to
1 In his original complaint, Bryant had brought a Monell claim against the Meriden Police
Department; this was dropped in his amended complaint.
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Dismiss and/or for Partial Summ. J. 34. On June 29, 2015, the district court granted
the officers’ motion in part. It awarded summary judgment on the Monell claim
and dismissed one of the officers from the case. The claims against the remaining
six officers proceeded to trial.
Trial began on April 20, 2016. At trial, the officers’ account of the arrest and
detention differed starkly from Bryant’s. The officers asserted that their use of
force against Bryant during his arrest was justified by his non‐compliance. While
they acknowledged that Bryant’s pants fell during the arrest, they stated that this
was not the result of a strip search but of Bryant’s own efforts to hide the bag of
crack cocaine. This bag, they contended, was lodged between the cheeks of
Bryant’s buttocks, where it remained until the officers conducted a lawful strip
search—not an unlawful cavity search—in the holding cell. Moreover, they
asserted, it was Bryant’s resistance to this lawful holding cell search that justified
Slezak’s single use of the taser.
After Bryant rested his case‐in‐chief, the officers moved for judgment as a
matter of law (JMOL) pursuant to Rule 50(a) of the Federal Rules of Civil
Procedure. The district court granted the motion with respect to two of the officers,
but reserved decision as to Bryant’s claims against Slezak, Egan, and two other
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officers. At the close of evidence, the officers filed a renewed JMOL motion under
Rule 50(b), which the district court took under advisement pending the jury’s
verdict. Bryant did not make a JMOL motion at any point during the trial.
On April 28, 2016, the jury found for the remaining officers in all respects.
The district court then denied the officers’ renewed JMOL motion as moot.
Subsequently, Bryant made his own JMOL motion under Rule 50; in the
alternative, he also moved for a new trial under Rule 59. On March 31, 2017, the
district court denied Bryant’s JMOL motion on the grounds that he had failed to
make such a motion at the close of evidence, as required by Rule 50.
It also denied much of Bryant’s motion for a new trial. It upheld the jury
verdict in favor of the two officers other than Slezak and Egan. The court
concluded that a jury could have reasonably determined that, at the scene of his
arrest, Bryant was not subjected to excessive force and a strip search. Likewise, the
jury was free to believe the officers’ testimony that no cavity search had occurred
in the holding cell. But the court concluded it was against the weight of the
evidence for the jury to have found that “Bryant’s Fourth Amendment rights were
not violated when he was tased.” Bryant v. Meriden Police Depʹt, No. 3:13‐cv‐449
(SRU), 2017 WL 1217090, at *15 (D. Conn. Mar. 31, 2017). And, on that basis, the
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court ordered a new trial as to whether Slezak’s use of the taser was excessive and
whether Egan unlawfully failed to intervene.
Slezak and Egan now appeal. They argue that the district court erred in
finding that the jury’s verdict was against the weight of the evidence and that
qualified immunity should shield them from a new trial.2
III.
This Court “may generally hear appeals only from ‘final decisions’ of the
district court.” Coollick v. Hughes, 699 F.3d 211, 217 (2d Cir. 2012) (quoting 28 U.S.C.
§ 1291). Because the grant of a new trial under Rule 59 is not a final decision, it is
typically not appealable. See Ortiz‐Del Valle v. N.B.A., 190 F.3d 598, 599 (2d Cir.
1999) (per curiam). Thus, insofar as Slezak and Egan argue that the district court
erred in finding the jury’s verdict to be against the weight of the evidence, we lack
jurisdiction to hear their appeal.
An interlocutory denial of qualified immunity is, however, immediately
appealable when the underlying issues raise only questions of law. Bolmer v.
Oliveira, 594 F.3d 134, 140 (2d Cir. 2010). This is because qualified immunity offers
“immunity from suit rather than a mere defense to liability.” Id. Accordingly, an
2 Bryant also cross‐appealed. Because his counsel, Josephine S. Miller, failed to file a brief, his
appeal was dismissed.
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important entitlement would be “effectively lost if a case [were] erroneously
permitted to go to trial.” Id.
Typically, an interlocutory appeal based on the denial of qualified
immunity is brought before trial. See Britt v. Garcia, 457 F.3d 264, 271 (2d Cir. 2006).
Although hearing such an appeal following trial, as here, is unusual, “this unusual
posture does not affect the viability of the qualified immunity defense.” Id. Since
another trial would implicate interests protected by qualified immunity, the grant
of a motion for a new trial may still be immediately appealable. But, once again,
that will be so only if the denial of qualified immunity turns solely on issues of
law. See State Emp. Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 82 (2d Cir. 2007).
That is not the situation before us. Where, as here, “a factual determination
is a necessary predicate to the resolution of whether . . . immunity is a bar, review
is postponed and we dismiss the appeal.” Id. (internal quotation marks omitted)
(alteration in original).
Before trial, factual questions precluded a determination that Slezak and
Egan were entitled to qualified immunity. And, as to the issues before us, that
remains the case here. When determining whether factual questions remain on a
post‐trial claim, this Court may look to the undisputed facts adduced at trial and
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to any factual issues resolved by the trial. See, e.g., Britt, 457 F.3d at 271‐72;
Hathaway v. Coughlin, 37 F.3d 63, 67 (2d Cir. 1994). But in this case, the officers
concede that “[n]early every fact material to [Bryant’s] Fourth Amendment claims,
including [his claim] premised on the Taser use, was disputed by the parties at
trial.” Defs.‐Appellants’ Br. 5. And given the district court’s conclusion that the
jury’s verdict—with respect to Slezak’s tasering and Egan’s failure to intervene—
was against the weight of the evidence, that verdict no longer resolves those
factual disputes. See Aczel v. Labonia, 271 F. Appʹx 73, 75 (2d Cir. 2008) (summary
order) (“Once the district court rejected the jury’s verdict on excessive force and
qualified immunity, the verdict form no longer resolved disputed factual issues”).
Fundamentally, then, this case is not in a meaningfully different posture
than it was prior to trial, where the officers acknowledged that a finding of
qualified immunity would have been premature. It remains premature now.

Outcome: The appeal is accordingly DISMISSED for lack of jurisdiction.

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