No. 95 Civ. 5331 (LAK).
*1069 *1070 David Breitbart, Richard M. Rubenstein, Law Office of David Breitbart, New York City, for Plaintiff.
Robert Blossner, New York City, for Defendants Robert Berretta, Berretta Bonds Agency, Inc., and Confidential Inquiries, Inc.
Milton H. Pachter, Stephen E. Powell, New York City, for Defendants Port Authority of New York and New Jersey, Sergeant Kenneth Kohlman, Sergeant Robert Schaefer, and Lieutenant Kenneth Hassett.
In July 1994, the plaintiff, Jrae Mason, was sitting on her stoop in Manhattan when she was approached by two men who believed that she was, or might have been, Audrey White Smith, who had jumped bail in Tuscaloosa, Alabama. This began an ordeal of several days during which Ms. Mason was confined and then taken against her will to Tuscaloosa, where she was released when the Alabama authorities determined that she was not Smith. She brought this action against a number of defendants under 42 U.S.C. § 1983 and on state law theories, in substance for false arrest. The jury returned substantial verdicts in Mason's favor against two related Bronx firms, Confidential Inquiries, Inc. ("CI") and Berretta Bonds Agency, Inc. ("BBA"), which were alleged to have employed the bounty hunter who caused Mason's arrest, and three officers of the police department of the Port Authority of New York and New Jersey, who allegedly acted wrongfully in connection with a portion of Mason's detention. The matter now is before the Court on defendants' post-verdict motions and for a determination of the effect, if any, of a prior settlement of related claims made by the City of New York.
The chain of events that led to Mason's arrest and transport to Alabama began with the failure of one Audrey White Smith to appear as required for an Alabama court appearance, whereupon Alabama bondsmen sought to procure her return. Apparently believing that Smith had fled to Manhattan, they enlisted help in New York, although the evidence at trial was far from clear as to whose help they sought. Whatever the route, however, the assignment ultimately went to one Victor Melendez who, from time to time, apprehended defendants who had jumped bail.
Melendez was acquainted with Darren Fuentes and Javier Mulinary, who were interested in getting into the bail enforcement business. He gave them such information as he had and sent them in search of Smith. On July 18, 1994, they came upon Mason sitting in front of her apartment building and thought she might be Smith. Although Mason denied being Smith, she produced a number of different pieces of identification, each bearing a different name. Fuentes and Mulinary then handcuffed her, taking her first to the local New York City Police precinct and then to Bronx Central Booking in an effort to establish her identity. They ultimately were directed to Manhattan Central Booking, and they and Melendez took Mason to that facility.
Melendez took Mason inside and spoke to NYPD personnel. Mason was fingerprinted and the prints were sent to Albany. In the process, an on-line booking sheet, a prisoner transport slip, and other paperwork similar to the documents generated when the NYPD makes an arrest were produced by the NYPD on-line booking system. A civilian employee of the police department testified that after the fingerprint report arrived from Albany, he told Melendez that Mason was not the woman wanted in Alabama, although Melendez in a tape recorded statement received in evidence contended that he was told that Mason "is the one." In any case, Melendez emerged from Manhattan Central Booking with Mason and turned her over once again to Fuentes and Mulinary with instructions to hold her until the Alabama bondsmen arrived in New York to take custody of her.
On the following day, Fuentes, Mulinary and Melendez took Mason to Kennedy Airport to meet the Alabama bondsmen upon their arrival. When the plane was delayed, they took Mason to the Port Authority police *1071 facility. Melendez spoke to Sergeant Robert Schaefer, showed him some papers, the nature of which Schaefer could not remember at trial, and asked to hold Mason there until the flight arrived. Mason was handcuffed to a chair in a conference room for about two hours. Melendez, assisted by Fuentes and Mulinary, then had Mason signed out by Sergeant Kenneth Kohlman, took her to the Avis car rental location, and turned her over to the Alabama bondsmen in exchange for a $4,000 check. At that point, the Alabama bondsmen took her to Alabama where she ultimately was released.
Mason brought this action against the City of New York, the Port Authority, the two Port Authority sergeants, a lieutenant who had been on duty that day, Melendez, Fuentes, Mulinary, Robert Berretta, and the two Bronx companies of which Berretta was the sole stock holder, CI and BBA. In essence, she charged all concerned with false imprisonment. The claim against Berretta, CI and BBA was based on the theory that Melendez had been employed by them and that they were responsible for his actions, as well as those of Fuentes and Mulinary. The City settled before trial for $145,000, and the case went to trial against the Port Authority, its officers, and Berretta and his companies. The fundamental issues at trial were whether the Port Authority officers had acted reasonably and whether Berretta and his companies were responsible for the actions of Melendez, Fuentes and Mulinary.
At the conclusion of the plaintiff's case, the Court granted judgment as a matter of law dismissing the claims against Berretta. The jury returned a special verdict finding: (1) Melendez, Fuentes and Mulinary reasonably believed at the time of Mason's arrest that she was Audrey White Smith, (2) Melendez learned at Manhattan Central Booking that Mason was not Smith, (3) Melendez was an employee of both BBA and CI, (4) Melendez acted within the scope of his employment by both companies when he took Mason into and kept her in custody, (5) each of the three Port Authority officers kept Mason in custody, (6) none of the Port Authority officers reasonably believed that Mason had jumped bail and that Melendez was assisting in returning her to the appropriate court, (7) the amounts that would reasonably compensate Mason for the injury she suffered were (a) $50,000 for the period from Melendez' learning that she was not Smith until her arrival at the Port Authority police facility, (b) $100,000 for the two hour period during which she was held at the Port Authority facility, (c) and $150,000 for the period of days commencing with her departure from the Port Authority facility, and (8) Mason was entitled to punitive damages in the amount of $450,000 as against each of BBA and CI.
BBA and CI now move to vacate the damage awards against them pursuant to FED. R.CIV.P. 50(b) or for a new trial. They argue that they cannot be held liable under 42 U.S.C. § 1983 for the actions of Melendez, Fuentes and Mulinary, even if Melendez was employed by them, because there is no respondeat superior liability under Section 1983 and neither BBA nor CI authorized or acquiesced in the tortious conduct.
The Port Authority officers move for judgment as a matter of law or for a new trial. They renew their Rule 50 motion, contending that they are entitled to judgment as a matter of law on the ground of qualified immunity. In the alternative, the Port Authority officers move for a new trial on the ground that the damages are excessive.
The parties agreed to reserve to the Court the effect of the City's $145,000 settlement on the remaining defendants and the apportionment, if appropriate, of liability among the defendants.
In arguing that there is no respondeat superior liability under Section 1983, a well-established proposition, BBA and CI overlook the essential fact that their liability rests equally on state law. Section 1983 affords a cause of action for false imprisonment where the defendants act under color of state law. See Zanghi v. Incorporated Village of Old Brookville, 752 F.2d 42, 45 (2d Cir. 1985). The elements of the claim, save for the color *1072 of state law requirement, are identical to those of the common law cause of action. Id. BBA and CI therefore are liable for the actions of Melendez, Fuentes and Mulinary under the doctrine of respondeat superior to whatever extent that doctrine would subject them to liability on the pendent state law claims. The question, therefore, is whether BBA and CI are entitled to judgment on the state law claims.
The issue whether Melendez was an employee of the Berretta companies was hotly contested at trial. Berretta claimed that Melendez was an independent contractor. According to Berretta, Melendez was trying to go into business as a bail enforcement agent a bounty hunter but lacked sufficient resources to do so on his own. Berretta therefore allowed Melendez to use a desk in his store front in exchange for a promise that Melendez would pay him rent in the future when Melendez got his feet on the ground. Berretta claimed also that he hired Melendez from time to time, on a contingency basis, to find defendants for whom Berretta had procured bail bonds and who had failed to appear as required. The plaintiff, on the other hand, asserted that Melendez was an employee. The evidence, although perhaps thin, was sufficient to warrant submission of the issue to the jury. And the jury specifically found that Melendez was an employee. There is no basis for disturbing that finding.
The jury found also that Melendez acted within the scope of his employment with regard to Mason. The plaintiff of course sought to suggest that the assignment to find Smith was an assignment that had come to BBA and CI and that Melendez had been working for them in making the arrest. Berretta denied any such thing, arguing that Melendez somehow had made his own deal with the Alabama bondsmen as part of his efforts to get his independent business off the ground. Unfortunately for the Berretta entities, however, the parties stipulated into evidence a tape recorded statement made by Melendez, who did not appear at trial, to the NYPD (PX 42A) in which Melendez stated that "the case was initially taken by telephone by one Pat Ritchie, who I believe still works for Berretta Bonding. The case was then assigned to me because it fell within my area of responsibility." He went on to say that he, Fuentes and Mulinary had been acting on behalf of BBA. The credibility of Melendez' statement plainly was for the jury to determine. The evidence therefore was sufficient to support the jury's verdict that Melendez and his associates acted within the scope of Melendez' employment by BBA and CI. In consequence, BBA and CI are liable on the state law claims for Melendez' actions on the theory of respondeat superior.
There was very little evidence at trial concerning the unfitness theory on which the punitive damages claim against the Berretta entities went to the jury. Berretta acknowledged that he did not look into Melendez' background before entering into the arrangement with him (Tr. 186-87), and the jury therefore was entitled to charge his companies with knowledge of anything that such a check would have revealed. Plaintiff's difficulty, however, is that she failed to offer any evidence from which the jury reasonably could have found that Melendez was unfit when Berretta hired him or, for that matter, at any point before the fateful day on which he improperly retained custody of plaintiff after having learned that he had the wrong person. This conclusion, however, does not require that plaintiff's punitive damage claim be dismissed in the present posture of the case. Indeed, the Court lacks the authority to do so in light of the motion that was made at the conclusion of all of the evidence.
FED.R.CIV.P. 50(a) permits a party to move for judgment as a matter of law prior to the submission of the case to the jury and requires that such a motion "specify the judgment sought and the law and the facts on which the moving party is entitled to judgment." Rule 50(b) provides that if the Court does not grant the motion, the case is deemed submitted to the jury subject to the Court's later deciding the legal questions raised by the motion and permits renewal of the request for judgment by motion within ten days after the entry of judgment. The critical point is that the post-judgment Rule 50 motion is merely a renewal of the motion made prior to the submission of the case to the jury and therefore is limited to the grounds raised by the losing party in that motion. Lambert v. Genesee Hospital, 10 F.3d 46, 53-54 (2d Cir.1993).
Here, the Berretta companies sought judgment as a matter of law at the close of all the evidence on the ground that "Melendez veered from his employment after" learning that plaintiff was not Smith. (Tr. 612-13) They did not seek judgment on the ground that there was no evidence to support the unfitness theory and, indeed, did not object to the relevant aspect of the charge. (Tr. 620-21, 631) Accordingly, the Court may not grant judgment to the Berretta companies with respect to the punitive damages claim. Nevertheless, their motion seeks a new trial as well. (Blossner Aff. at 4) As the lack of any evidence to support the finding that either BBA or CI was aware of any unfitness of Melendez renders the jury's verdict on this question against the weight of the evidence, that portion of the verdict that finds BBA and CI each liable to plaintiff in the amount of $450,000 for punitive damages is set aside and a new trial of the punitive damage claim against them is ordered. Oliveras v. American Export Isbrandtsen Lines, Inc., 431 F.2d 814, 816-17 (2d Cir.1970).
At the close of all of the evidence, the Court granted the motion of the Port Authority to dismiss the Section 1983 claim against it on the ground that there was no evidence from which the jury could find the Port Authority liable in light of Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). It granted also the motions of all of the Port Authority defendants to dismiss the punitive damages claims against them because there was no evidence upon which such an award could be grounded. It denied the motion of the three Port Authority officers to dismiss the claims against them on the ground of qualified immunity. It is this latter motion which the Port Authority officers renew. Although brief reference already has been made to the facts concerning the Port Authority police involvement in this matter, somewhat more detail is necessary to deal with these motions.
Mason was kept in the conference room for approximately two hours. (Tr. 280) Melendez then said it was time to go, Sergeant Kohlman signed Mason out on the log, and Melendez and the others took Mason out of the facility. (Tr. 74, 280-82, 524-25, 529-33) Thus ended the involvement of the Port Authority police in this incident.
"In determining whether a particular right was clearly established at the time defendants acted, this Court has considered three factors: (1) whether the right in question was defined with `reasonable specificity'; (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and (3) whether under preexisting law a reasonable defendant official would have understood that his or her acts were unlawful." Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir.1991), cert. denied, 503 U.S. 962, 112 S. Ct. 1565, 118 L. Ed. 2d 211 (1992).
A determination of "rights" under this standard "depends substantially upon the level of generality at which the relevant `legal rule' is to be identified," as the issue of immunity cannot be resolved by reference to overly general formulations of constitutional rights. Anderson v. Creighton, 483 U.S. 635, 639, 107 S. Ct. 3034, 3038, 97 L. Ed. 2d 523 (1987). There is no question that an individual has a Fourth Amendment right to be free from unreasonable seizure. But that is far too general a statement for meaningful qualified immunity analysis. In light of the jury's finding that the officers did not reasonably believe, based on the information presented by Melendez, that Mason was Audrey White Smith and that Melendez and his associates were assisting in returning her to the appropriate court, the dispositive issue here is whether the Port Authority officers were required to make inquiries as to Mason's identity.
The right in question an arrestee's right to have her identity checked before or soon after she is incarcerated was unambiguously and strongly supported by Second Circuit law at the time of the events in question. "[W]here a police officer has or should have doubts whether a detained suspect is in fact the person sought, the officer must make `immediate reasonable efforts to confirm the suspect's identity.'" United States v. Valez, 796 F.2d 24 (2d Cir.1986) (quoting United States v. Glover, 725 F.2d 120, 123 (D.C.Cir. 1984)); United States v. Bautista, 23 F.3d *1075 726, 730 (2d Cir.1994). Accordingly, Jermosen's first two requirements are met.
The Port Authority officers contest Jermosen's third prong and contend that they are not properly charged with knowledge of Mason's rights in this situation. They claim that the circumstances of this case were sufficiently unusual that a reasonable police officer would not have known that the officers had a duty to take reasonable steps to check Mason's identity. The Court disagrees. Regardless of the circumstances preceding Mason's arrival at the airport, upon entering the Port Authority's custody she was owed at least the same duty as any arrestee. The Court therefore finds that the Port Authority officers violated a clearly established right of which they certainly should have known. Hence, they are not immune from suit under Section 1983.
The officers are liable also under New York law. Police are not immune in New York from intentional tort liability. Jones v. State of New York, 33 N.Y.2d 275, 279-80, 352 N.Y.S.2d 169, 171-72, 307 N.E.2d 236, 236-38 (1973). See Arteaga v. State of New York, 72 N.Y.2d 212, 220, 532 N.Y.S.2d 57, 61-62, 527 N.E.2d 1194, 1197-99 (1988). More specifically, police are not immune in suits for false arrest or false imprisonment. See Ross v. Village of Wappingers Falls, 62 A.D.2d 892, 897, 406 N.Y.S.2d 506, 510 (2d Dep't 1978). Because the jury found that the Port Authority officers committed all of the elements of false imprisonment, the officers are not entitled to immunity on the state law claims.
The jury found that the damages to plaintiff were $50,000 for the period from the time of the finger print check at Manhattan central booking until her arrival at the Port Authority facility, $100,000 for the brief period during which she was at the Port Authority facility, and $150,000 for the period from the time when she left the Port Authority facility until she was freed in Alabama a couple of days later. The Port Authority defendants claim that the damages for the second of these periods are excessive.
Because the jury awarded lump sum damages encompassing both the federal and state claims, the Court must determine excessiveness under both federal and state law. Under federal law "[t]he standard of appellate review of damage awards ... `is whether the award is so high as to shock the judicial conscience and constitute a denial of justice.'" Ismail v. Cohen, 899 F.2d 183, 186 (2d Cir.1990). When making this determination under Section 1983, courts should consider both federal and state law awards. Zarcone v. Perry, 572 F.2d 52, 54-55 (2d Cir.1978).
Under Section 5501(c) of New York's CPLR, jury awards are considered "excessive or inadequate if [they] deviate materially from what would be reasonable compensation." In applying this test, "New York state courts look to awards approved in similar cases." Gasperini v. Center for Humanities, Inc., ___ U.S. ___, 116 S. Ct. 2211, 135 L. Ed. 2d 659 (1996). This standard provides for a narrower range of acceptable awards than its "shocks the judicial conscience" counterpart. Consorti v. Armstrong World Industries, Inc., 72 F.3d 1003, 1013 (1995).
The $100,000 awarded for Ms. Mason's incarceration at the airport for roughly two hours is excessive under both the New York standard and federal law. Plaintiff suffered no physical injuries at the hands of the Port Authority or while in its facility. Her detention there was not visible to the public, circumscribing the humiliation resulting from her treatment. It is immediately apparent *1076 that the magnitude of this award does not comport with precedent, even when previous decisions are adjusted for inflation. Accordingly, the plaintiff must agree to a remittitur of all but $10,000 of the $100,000 awarded for the period of incarceration at the airport or the Court will order a new trial on this issue.
The City of New York and related defendants settled with plaintiff for $145,000. The trial defendants contend that they are entitled to setoff the amount of the City's payment against their liability to the plaintiff. They contend also that liability should be apportioned among them, the settling defendants, and the defendants against whom default judgments have been entered. They have stipulated that the Court will resolve these issues without a jury and make any findings of fact necessary to do so. (Tr. 637-42).
In addressing the claimed setoff of the City's settlement, it is necessary to consider, first, the divisibility of the settlement from the liability of the nonsettling tortfeasors and, second, the availability of setoff to intentional tortfeasors.
Plaintiff contends that the New York City settlement "was predicated on different damages" than the jury awards covering the three time periods and consequently there should be no setoff of the City's $145,000 settlement against the other defendants' liabilities. For setoff to apply under state law "[a]ll that is required is that [tortfeasors] be subject to liability for damages for the same injury." Roma v. Buffalo General Hospital, 103 A.D.2d 606, 608, 481 N.Y.S.2d 811, 812 (3d Dep't.1984). A similar standard is applicable under federal law, which governs the Section 1983 claims. United States v. Alcan Aluminum Corp., 990 F.2d 711, 722 (2d Cir. 1993).
The plaintiff's injury in this case was her false imprisonment. Her detention resulted from the actions of the City and the bondsmen from the time her fingerprints were checked at Manhattan Central Booking until her arrival at the airport and from the actions of the bondsmen, the City and the Port Authority and their agents for both of the subsequent periods. In each of these three periods Mason suffered a single injury, the deprivation of her freedom, which cannot be fractionalized.
Here, Melendez, and therefore CI and BBA, was a causative factor in all three periods of wrongful detention. The City settled a claim alleging that it was responsible for plaintiff's detention from the moment the fingerprint check was done at Manhattan Central Booking, so it too was a causative factor in all three periods. The Port Authority defendants were a causative factor in Mason's detention only from the moment of her arrival at the Port Authority facility until she was released in Alabama, viz. the last two periods. In consequence, the claim that the City settled was for the same injuries for which the defendants in this case were held liable at trial, although the extent to which particular defendants will benefit from the City's settlement varies depending upon the allocation of the settlement among the relevant time periods.
*1077 Whether setoff is available to intentional tortfeasors under New York law is easily answered. Section 15-108 of the General Obligations Law, N.Y.GEN.OBLIG.L. § 15-108 (McKinney 1995), provides in relevant part that a settlement "reduces the claim of the releasor against the other tortfeasors to the extent of any amount stipulated by the release or the covenant ... or in the amount of the released tortfeasor's equitable share of the damages ... whichever is greater." The statute "applies to joint tortfeasors ... and even intentional tortfeasors." Roma, 103 A.D.2d at 608, 481 N.Y.S.2d at 813.
The availability of setoff to non-settling defendants under Section § 1983 presents an unsettled and significantly more difficult question. 1 MARTIN A. SCHWARTZ & JOHN E. KIRKLIN, SECTION 1983 LITIGATION § 16.18, at 895, 897 (2d ed. 1991).
"shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction [is located] ..., so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause...."
Section 1988 therefore requires courts first to determine whether "suitable" federal law exists. If it does not, the relevant state law must be compared with principles underlying Sections 1983 and 1988. "If there is no inconsistency between these two bodies of law, the state law solution to the problem will be applied. If there is an inconsistency, the state law must be rejected, and this court must fashion an appropriate remedy to carry out the congressional purposes behind the civil rights legislation." Goad v. Macon County, Tennessee, 730 F. Supp. 1425, 1426 (M.D.Tenn.1989).
While it is apparent that the civil rights laws do not address the setoff issue, the phrase "the laws of the United States" includes federal common law. See Gray v. City of Kansas City, Kan., 603 F. Supp. 872, 875 (D.Kan.1985). However, the few federal common law pronouncements concerning setoff under Section 1983 are inconsistent. Compare Miller, 646 F.2d at 110 ("where one or more defendants have settled with a plaintiff, the damages recoverable by that plaintiff shall be reduced by the amount of the settlement received"), with Dobson v. Camden, 705 F.2d 759, 768 (5th Cir.1983), rev'd on other grounds, 725 F.2d 1003 (5th Cir.1984) ("A settlement by one tortfeasor ... should have no effect on the liability of another tortfeasor."). A number of courts have determined that "federal law is deficient on the effect of a settlement with a joint tortfeasor on the liability of a nonsettling tortfeasor." Id. at 763. See Johnson v. Rogers, 621 F.2d 300, 304 n. 6 (8th Cir.1980); Hoffman v. McNamara, 688 F. Supp. 830, 833 (D.Conn.1988). Thus, the Court concludes that the availability of setoff under Section 1983 requires consideration of state law and its consistency with the federal policies underlying Section 1983.
"The policies underlying § 1983 include compensation of persons injured by deprivation of federal rights and prevention of abuses of power by those acting under color of state law." Robertson v. Wegmann, 436 U.S. 584, 590-91, 98 S. Ct. 1991, 1995, 56 L. Ed. 2d 554 (1978). The Fifth Circuit offers a succinct paraphrase: "[S]ection 1983 embodies *1078 two policies: compensation and deterrence." Dobson, 705 F.2d at 763. The question therefore is whether allowing setoff in accordance with state law would tend to defeat these policies.
Section 15-108 of the General Obligations Law, insofar as it is relevant here, permits a non-settling defendant to setoff the greater of (a) the amount of any settlement actually paid by a settling defendant, or (b) the settling defendant's equitable share of the damages. Thus, if the settling defendant pays a settlement higher than its equitable share, the sum of the reduced damages paid by the non-settling defendant and the settlement will equal the total amount of damages sustained. But if the plaintiff makes a disadvantageous settlement that is, if the plaintiff settles with one tortfeasor for less than that tortfeasor's equitable share of the damages the sum of the plaintiff's judgment against the non-settling defendant, net of the reduction compelled by Section 15-108, and the settlement will be less than the total amount of damages inflicted by the joint tortfeasors.
Here, the total damages sustained did not exceed $210,000. The City paid a settlement of $145,000. The jury found that the NYPD told Melendez that he had the wrong person. While the City nevertheless bears some responsibility for what followed because the NYPD did not require that Mason be freed on the spot and allowed Melendez to leave Central Booking with on-line booking documents that may have cloaked him with a color of authority for his custody of Mason, the Court finds that the City's equitable share of the responsibility pales by comparison with that of Melendez, who was a deliberate wrongdoer. Accordingly, the Court finds that the settlement paid by the City comfortably exceeded its equitable share of the damages.
In these circumstances, reduction of the defendants' liability by the amount of the City's settlement would not conflict with either of the policies underlying Sections 1983 and 1988. Mason still would be made whole in that the sum of the defendants' liability in this case and the City's settlement would equal the sum of the damages found by the jury for the first and third periods of detention and the maximum amount for the second period that is legally justifiable. The question whether Section 15-108 may be applied in a Section 1983 case where the amount of the settlement is less than the settling defendant's equitable share of the damages and the effect of the setoff would be to leave the plaintiff less than whole will be left for another day.
The next question is the proper allocation of the settlement paid by the City to the different time periods at issue. The jury found aggregate liability of $300,000 of which $50,000 was attributed to the time prior to the arrival at the Port Authority facility, $100,000 to the time spent in the custody of the Port Authority, and $150,000 to the remaining time in the bondsmen's custody. The Court, however, has held that any damages for the second period in excess of $10,000 would be excessive. Hence, the aggregate liability for compensatory damages cannot exceed $210,000, of which roughly 24% ($50,000/$210,000), or $34,524, is attributable to the pre-Port Authority period, 4.8% ($10,000/$210,000), or $6,905, is attributable to the period while Mason was at the Port Authority facility, and approximately 71% ($150,000/$210,000), or $103,571, to the ensuing period.
BBA and CI are jointly and severally liable for the entirety of plaintiff's compensatory damages, net of the City settlement. Assuming the plaintiff agrees to a remittitur, this sum is $65,000, which represents the total amount of damages to which plaintiff is entitled, $210,000, minus the City's settlement of $145,000. The Port Authority defendants were not responsible for any damages incurred prior to plaintiff's arrival at its facility. Accordingly, they are jointly and severally liable only for those damages incurred in the second and third periods, which, assuming the remittitur is accepted, are $160,000 minus the City's proportionate settlement setoff of $110,476, or $49,524.
The Port Authority officers and the Port Authority, joined by BBA and CI, request that the Court apportion liability *1079 among the defendants. In making this claim, however, the officers overlook the fact that their liability stems from federal law, namely Section 1983, as well as state law. Although "courts have struggled with [the right to contribution under § 1983] and have reached different conclusions," Harris v. Angelina County, 31 F.3d 331, 338 & n. 9 (5th Cir.1994), the Court determines that there is no right to contribution under Section 1983.
As previously discussed, Section 1988 authorizes courts to import state law to fill in gaps in the civil rights laws. Whether the availability of contribution even merits application of the Section 1988 test is a threshold issue that is the subject of some debate.
In Moor v. County of Alameda, 411 U.S. 693, 93 S. Ct. 1785, 36 L. Ed. 2d 596 (1973), the Supreme Court stated that Section 1988 was not intended "to authorize the wholesale importation into federal law of state causes of action...." Id. at 703-04, 93 S. Ct. at 1793. Some courts have interpreted this language as settling the issue. E.g., Rosado v. New York City Housing Authority, 719 F. Supp. 268, 273 (S.D.N.Y.1989) ("42 U.S.C. § 1988 serves the purpose of vindicating rights under § 1983, not state laws of contribution."); see 1 SCHWARTZ & KIRKLIN, SECTION 1983 LITIGATION § 16.18, at 89 (Moor "would seem to preclude the utilization of § 1988 as a basis for finding a state law right of contribution in § 1983 actions.").
On the other hand, Moor cites Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 90 S. Ct. 400, 24 L. Ed. 2d 386 (1969), for the proposition that "`the existence of a statutory right implies the existence of all necessary and appropriate remedies....'" When construing Section 1988, "`both federal and state rules on damages may be utilized, whichever better serves the policies expressed in the federal statutes.'" Moor, 411 U.S. at 703, 93 S. Ct. at 1792 (quoting Sullivan, 396 U.S. at 240, 90 S.Ct. at 406). Thus, the Port Authority argues, an action for contribution does not fall under Moor's "wholesale importation" language. Indeed, some courts have permitted contribution under Section 1983. See Alexander v. Hargrove, No. 93 Civ. 5510, 1994 WL 444732, at *1 (E.D.Pa. Aug. 16, 1994); Fishman v. De Meo, 604 F. Supp. 873, 877 (E.D.Pa.1985). Because the propriety of Section 1988's application to the issue of contribution under Section 1983 remains something of an open question, the Court applies the Section 1988 test.
As the above authorities make clear, federal law does not establish a right to contribution under Section 1983. See 1 SCHWARTZ & KIRKLIN, SECTION 1983 LITIGATION, § 16.18, at 895. New York law clearly permits a tortfeasor to seek contribution from other nonsettling defendants. NEW YORK CIVIL PRACTICE LAW AND RULES § 1401 (McKinney, 1995). The question thus reduces to whether contribution between joint tortfeasors is consistent with Section 1983's goals.
As stated above, the primary ends of Section 1983 are deterrence and compensation. The availability of contribution does not affect a plaintiff's right to receive compensation but is simply a matter of who pays for the harm to the plaintiff. Permitting a right to contribution, however, would weaken Section 1983's deterrent value. Accordingly, contribution among joint tortfeasors in Section 1983 cases would conflict impermissibly with the statutory goal of deterrence and is impermissible under the third prong of the Section 1988 test.
For the foregoing reasons, a new trial is ordered with respect to (a) plaintiff's punitive damage claims against BBA and CI and, unless plaintiff files a notice with the Clerk of the Court on or before January 10, 1997 accepting the remittitur, (b) the amount of plaintiff's damages for the period during which she was held at the Port Authority facility at John F. Kennedy International Airport. Should plaintiff accept the remittitur, judgment ultimately shall be entered in plaintiff's favor (a) against defendants BBA, CI, the Port Authority, Hassett, Kohlman and Schaeffer, jointly and severally, for the sum of $49,524, and (b) against defendants BBA and CI, jointly and severally, in the additional amount of $15,476, the foregoing constituting the plaintiff's compensatory damage recovery. Entry of judgment will be delayed pending the disposition of plaintiff's punitive damage claim against BBA and CI.
 The jury reasonably could have found that Melendez acted within the scope of his employment even if he departed from Berretta's instructions and the tort Melendez committed was intentional. Riviello v. Waldron, 47 N.Y.2d 297, 302, 418 N.Y.S.2d 300, 302, 391 N.E.2d 1278, 1280 (1979); Quadrozzi v. Norcem, Inc., 125 A.D.2d 559, 561, 509 N.Y.S.2d 835, 836-37 (2d Dep't. 1986).
 Neither side requested that the issue whether BBA and/or CI management authorized, participated in, consented to or ratified Melendez' conduct be submitted to the jury, no doubt recognizing that the evidence was insufficient to warrant doing so. Assuming that the record were to be regarded as sufficient to warrant such a finding, however, the Court finds, pursuant to FED. R.CIV.P. 49(a), that there was no such authorization, participation, consent or ratification.
 A police officer's duty to take reasonable steps to verify an arrestee's identity is not lessened by the fact that a civilian made the initial arrest. See Ruiz v. Herrera, 745 F. Supp. 940, 950 (S.D.N.Y.1990) (in distinguishing innocent individual from bail jumper, police officers may not rely on "the word of an unknown bail bondsman."); Bailey v. Kenney, 791 F. Supp. 1511, 1518 (D.Kan.1992) (police have duty "to inquire into the basis of bondsman's claim" before assisting him). If anything, the police should make greater efforts to verify the identity of a suspect arrested by civilians.
 Although the relevant portion of the Port Authority's brief was entitled "The Damages Are Excessive" (Def.Mem. 8), the argument focuses exclusively on the airport period.
 Applying the less easily satisfied "shocks the conscience standard," the Second Circuit reversed a $150,000 award for eight hours of false imprisonment, giving the plaintiff the choice between a new trial or $50,000. Gardner v. Federated Dep't Stores, Inc., 907 F.2d 1348 (2d Cir. 1990). Gardner also mentions a number of other New York false imprisonment damage awards, ranging from $50,000 for 12 hours of incarceration and significant humiliation to $7,500 for five hours of custody. Gardner, 907 F.2d at 1353 (discussing Malte v. New York, 125 A.D.2d 958, 510 N.Y.S.2d 353 (4th Dep't 1986), and Woodard v. City of Albany, 81 A.D.2d 947, 439 N.Y.S.2d 701 (3d Dep't 1981)). Decisions under federal law are roughly comparable. E.g., Velez v. United States, 693 F. Supp. 51 (S.D.N.Y.1988) (plaintiff received $25,000 for two days of false imprisonment).
 On September 26, 1996 the Court granted a default judgment against Melendez, Mulinary, Bail of Alabama, Inc. and Robert Hall, Jr.
 The Court finds that no part of the City's settlement was attributable to any period prior to the events at Manhattan Central Booking. There is no colorable or persuasive evidence of tortious behavior prior to that point.
 In Miller, 646 F.2d at 105-08, the Third Circuit simply developed a federal common law solution to the contribution issue. Other courts considering the issue have adhered more closely to the language of Section 1988. As the Fifth Circuit explained, "section 1988 would make no sense if Miller were correct on that point." Dobson, 705 F.2d at 763.
 The Supreme Court rejected the availability of contribution under Title VII civil rights claims in Northwest Airlines v. Transport Workers Union, 451 U.S. 77, 101 S. Ct. 1571, 67 L. Ed. 2d 750 (1981). The decision was based in substantial part upon the specific statutory framework of Title VII instead of the Section 1988 test. Id. at 94, 101 S. Ct. at 1582. The Supreme Court's reluctance to recognize a right to contribution in civil rights cases is, nonetheless, instructive.
More recently, the Supreme Court has suggested that the argument against contribution "under an express remedial provision fashioned by Congress" has "much force." Musick, Peeler & Garrett v. Employers Ins., 508 U.S. 286, 113 S. Ct. 2085, 124 L. Ed. 2d 194 (1993). Although the opinion did recognize a right of contribution under a judicially-fashioned provision of the securities laws, Section 1983 is certainly a remedy fashioned by Congress.
 The Court notes that the Port Authority and BBA and CI are both liable exclusively under New York law. However, their vicarious liability derives from the actions of agents the officers and Melendez, respectively who are liable under Section 1983. Allowing the Port Authority and BBA and CI, whose agents were the primary tortfeasors against Mason, to seek contribution would circumvent entirely the deterrent aim of Section 1983, as explained below.


text:
- the browser and operating system of the visitor’s end device and the name of the access provider used by the visitor.
- facilitating administration of the website and improving this.
No processing of the data shall expressly take place for the purpose of acquiring knowledge about the person visiting the website.
Visitors may send messages to the chancellery via an online form on the website. To enable the chancellery to respond to queries of this type, a valid e-mail address needs to be specified at minimum. The person submitting the query may include further details voluntarily. In sending their message via the contact form, the visitor simultaneously approves the processing of any personal data they send. This data will be processed solely for the purpose of dealing with and answering queries via the contact form and shall be done so based on consent granted voluntarily in accordance with Art. 6 Para 1 1a) of the GDPR. Personal data collected for use of the contact form shall be deleted automatically as soon as the query has been dealt with and any reasons for its continuing storage (such as the subsequent commissioning of our chancellery) cease to apply.
- this is required according to Art. 6 Para. 1 1b) of GDPR in order to fulfill a contract in which the data subject is a party.
In no other cases shall we forward your personal data to third parties.
Our website makes use of what are known as cookies. These are data packets exchanged between the server of the chancellery website and the visitor's browser. On visiting the website, these will be saved by the device used in each case (PC, laptop, tablet, smartphone etc.). In this respect, cookies cannot cause any damage to the devices used. In particular they will not become infected with any viruses or other harmful types of software as a result. Subsequent information created in conjunction with the specific end device used is stored in each case. This information cannot provide the chancellery with information on the identity of the visitor to the website in any circumstances.
Cookies are accepted depending on the user’s basic browser settings for the most part. The browser may be set so that cookies are either not accepted on the devices used or so that a special warning appears each time before a new cookie is added. It is important to note however that in such cases deactivating cookies can prevent optimal use of all website functions.
Temporary cookies are used to improve user friendliness. These are saved for a temporary period of time on the visitor’s device. When the visitor returns to the website, the owner can then automatically detect that the visitor had accessed the site at an earlier point in time, as well as which data they input and any settings they made during their visit so there is no need for them to re-enter these.
The processing of data by cookies for the above purposes is lawful in order to uphold the justified interests of the chancellery in accordance with Art. 6 Para. 1 1f) of the GDPR.
Analysis programs like Google Analytics are not used on this website.
This website does not use any social network plug-ins.
- where applicable, in the case of transfer to recipients in third countries where the EU commission resolution about suitable privacy levels according to Art. 45 Para. 3 of the GPDR is not in place, information about any suitable guarantees on personal data protection to be provided in accordance with Art, 46 Para. 2 of the GPDR.
In cases where you ascertain that we are in possession of personal data about yourself that is incorrect, you are entitled to demand this incorrect data be corrected immediately. In case of personal data about yourself being incomplete, you are likewise entitled to demand it be completed.
- The personal data is no longer required for the purposes for which it was originally processed.
- The justification basis for the processing was your consent alone, which you have subsequently withdrawn.
- You have raised an objection to the processing of personal data which we have disclosed to the public.
- You have raised an objection to the processing of personal data that was not disclosed by us and no overriding justified reasons for its processing apply.
- The personal data needs to be deleted in order to comply with a legal obligation to which we are subject.
No right to its deletion exists if, in the case of legitimate non-automated data processing, its erasure is not possible due to the special nature of its storage or this is only possible following a disproportionate amount of time expenditure and where your interest in its deletion is minor. In such cases, rather than deletion, its processing shall instead be restricted.
- You dispute the correctness of your personal data. In such cases, the restriction might be requested for the duration of the time we require to check the correctness of this data.
- Its processing is unlawful and, rather than deletion, you demand use of your personal data be restricted.
- Your personal data is no longer required by us for the original processing purpose(s) yet you require this in order to assert, exercise or defend legal claims.
- You have submitted an objection in accordance with Art. 21 Para. 1 GDPR. The restriction on processing can be demanded for the time during which it is not yet certain whether our justified reasons override your own reasons.
Restriction of processing means that the personal data is only processed with your consent or in order to assert, exercise or defend legal claims, to protect the rights of another natural or legal person or else for reasons of significant public interest. Before we revoke this restriction, we shall inform you of this.
You have a right to data portability in cases where the processing is based on your consent (Art. 6 Para. 1, 1a) or Art. 9 Para. 2 a) GDPR) or is based on a contract to which you are a party and the processing takes place by means of an automated procedure. The right to data portability in this case includes the following rights, providing they do not infringe the rights and freedoms of any other persons: You may demand that you obtain from us the personal data you have provided us with in a commonly available, structured, machine-readable format. You are entitled to transfer this data to another controller without any hindrances on our part. Where technically feasible, you may request that we transfer your personal data to another controller directly. This shall not apply in cases where right of retention for the data saved in the data centre is applicable in accordance with (§ 273 (1) German Civil Code (BGB) and § 66 German Tax Consultancy Law (StBerG)).
In cases where processing is based on Art. 6 Para. 1, 1e) of the GPDR (performing a task in the public interest or in the exercise of official authority vested in them) or on Art. 6 Para. 1 Para. 1f) of the GPDR (legitimate interests of the controller or of a third party), you are entitled to raise objection to the data processing at any time on compelling legitimate grounds relating to your particular situation. This also applies in case of profiling based on Art. 6 Para. 1, 1 e) or f) of the GDPR. After exercising your right to raise an objection, we will no longer process your personal data unless we are able to verify compelling legitimate grounds for its processing which override your own interests, rights and freedoms or its processing is for the assertion, exercising or defence of legal claims.
As a data subject, you may raise an objection to the processing of your personal data for use in direct mail addresses at any time. This applies also in the case of “profiling”, which is also associated with direct mail addresses of this nature. After you have exercised your right to raise an objection, we shall no longer use your personal data for the purpose of direct mail addresses.
You are entitled to inform us of your objection via e-mail, fax or via the postal address specified at the start of this data protection declaration and without the use of any form.
You are entitled to revoke any consent you have granted with effect for the future at any time. Your cancellation of consent may be communicated via telephone, e-mail or fax where applicable or via our postal address and without the use of any forms. The cancellation shall not affect the lawfulness of the data processing that took place based on your consent up until the cancellation was received. Following receipt of your cancellation, processing of the data, which was based solely on your consent, shall subsequently be ceased.
In cases where you consider processing of your personal data to be unlawful, you may lodge a complaint with a supervisory data protection authority responsible for your place of residence or work location or for the location of the supposed infringement.
This website offers the option of using Google Maps in order to display a site map. In activating the site map, you consent to the recording, processing and use of the data collected automatically via Google, by one of its representatives or by a third party.
Conditions of usage for Google Maps can be found at "Google Maps Additional Terms of Service "
This data protection declaration represents the status as of 25th May 2018. We reserve the right to update this data protection declaration at any time in order to improve data protection and/or adapt it to legislative authorities or changed legal verdicts.
The web server for the technical operation of our website is guaranteed by the IT service provider STRATO AG and maintained by controllers at the chancellery.

matches:
Art. 6
Art. 6
Art. 6
Art. 45
Art. 21
Art. 9
§ 66
Art. 6
Art. 6
Art. 6


The Tenth Circuit Court of Appeals issued its opinion in Moya v. Garcia on Tuesday, April 24, 2018.
On August 27, 2014, a bench warrant was issued for Mr. Moya after he failed to appear for his scheduled arraignment. He was subsequently arrested on the outstanding bench warrant and booked into the Santa Fe County Adult Correctional Facility (SFCACF) on September 15, 2014. Mr. Moya was not brought before the district court for an arraignment until November 17, 2014—63 days after he was detained.
On July 21, 2015, a bench warrant was issued for Mr. Petry after he failed to appear for his scheduled arraignment. He was arrested the following day on unrelated charges and booked into the SFCACF. On July 27, 2015, shortly before he was to be released on the unrelated charges, Mr. Petry was served with the July 21 bench warrant and further detained by SFCACF. Mr. Petry was not brought before the district court for an arraignment until August 21, 2015—30 days after he was first detained.
These arraignments were in violation of New Mexico’s Rules of Criminal Procedure, which entitles defendants to arraignment within 15 days following arrest. Under the belief that Santa Fe County and Santa Fe County officials had a systematic policy and practice of failing to take action that would ensure detainees receive timely bail hearings as required by law, Mr. Moya and Mr. Petry filed a class action complaint under 42 U.S.C. § 1983, alleging their unlawful detainment was a deprivation of due process.
The district court granted the defendants’ motion to dismiss for failure to state a claim, finding that the complaint did not plausibly allege facts showing the sheriff or wardens had been personally involved in the untimely arraignments, either through their own participation or supervisory control. The district court also denied plaintiffs’ request to amend, reasoning that as the individual defendants’ were entitled to qualified immunity, any amendment would be futile.
On appeal, the plaintiffs argued that the sheriff and wardens were responsible for the delays in the arraignments under the theory of supervisory liability. The Tenth Circuit disagreed, finding that the sheriff and wardens were not the cause of the arraignment delays. After their arrests, jail officials notified the court that Mr. Moya and Mr. Petry were in custody. Once the court had been notified, it became the exclusive responsibility of the court to comply with the fifteen-day arraignment requirement—only the state trial court has the power to schedule arraignments. In further support of its conclusion that jail officials had not caused the arraignment delays, the Tenth Circuit brought attention to the fact that the plaintiffs had not alleged a failure by the defendants to tell the court of the arrests in a sufficient time to conduct the arraignment within the requisite fifteen days. There simply was no alleged conduct of the defendants that had prevented the court from scheduling the arraignments.
The Tenth Circuit next examined whether the defendants had any duty to ensure arraignments are timely scheduled. In the Tenth Circuit, the determination of the scope of defendant’s responsibility to ensure prompt hearings correctly focuses on state law. New Mexico law imposes no duty on the sheriff or warden to bring an arrestee to court in the absence of a scheduled arraignment. Further, the plaintiffs presented no authority that would provide guidance on what the sheriffs and wardens could have done to ensure timely court proceedings and avoid the due process violations, short of reminding the court of the court’s own failure to schedule an arraignment. But the Tenth Circuit reasoned that even with such a reminder, the arraignments could still only be scheduled by the court. Because the sheriff and wardens had no power to schedule the arraignments, the sheriff and wardens had no power to prevent or cure the alleged constitutional violations.
The dissent argued that the majority wrongly focused only on the arraignment and overlooked the detention. The dissent agreed that the sheriff and wardens were powerless to cause timely arraignments as the arraignments could only be schedule by the court, but theorized that the jail officials could have simply released Mr. Moya and Mr. Petry. The majority countered, stating that the plaintiffs had expressly disavowed this theory and had therefore waived any reliance on such theory as a basis for reversal. The majority noted than even if the issue was raised, under New Mexico law jailers commit a misdemeanor and must be removed from office if they deliberately release a prisoner absent a court order. Even in this scenario, the Tenth Circuit opined that the dismissal of the § 1983 action should be affirmed because the state law required detention absent a court order and the plaintiffs had not challenged the constitutionality of the law.
In addressing the plaintiffs’ claims against the county for failing to adopt a policy that would ensure timely arraignments, the Tenth Circuit found that as the sheriff and wardens did not cause the arraignment delays, the county could not incur liability under §1983 on the basis of the alleged inaction of the sheriff and wardens.
The issue of whether Mr. Moya and Mr. Petry had adequately alleged a deprivation of due process was not reached.
The Tenth Circuit also found the district court did not abuse its discretion in denying leave to amend, as the plaintiffs had failed to explain how they could have cured the deficiencies in the complaint identified by the district court.
The Tenth Circuit Court of Appeals affirmed the district court’s dismissal of Plaintiffs’ claims for failure to state a valid claim.
The Colorado Court of Appeals issued its opinion in People v. Hardin on Thursday, December 1, 2016.
William Hardin was accused of robbing three men and killing two of them. When his 1988 trial concluded, Hardin was convicted of two counts of aggravated robbery, two counts of felony murder, and two counts of murder after deliberation. He was sentenced to two consecutive 16-year sentences for the aggravated robbery convictions and two life sentences for the felony murder convictions. He was not sentenced for the murder after deliberation convictions. Hardin appealed and was also granted a limited remand to pursue a Crim. P. 35(c) ineffective assistance claim. Over the next six years, Hardin was appointed a series of private attorneys for his postconviction claim; Hardin repeatedly filed pro se motions expressing frustration with his legal representation and his appointed attorneys’ lack of action on the postconviction claim.
In 1997, a division of the Colorado Court of Appeals vacated Hardin’s limited remand and decided his direct appeal. It affirmed Hardin’s convictions but remanded for sentencing on the murder after deliberation convictions and vacate one of the felony murder convictions. That division also concluded that Hardin’s ineffective assistance claims should be decided in a postconviction proceeding. Hardin filed a pro se postconviction proceeding in 1999, which the court denied without a hearing. Another division of the court of appeals reversed and remanded with instructions to hold further proceedings on the postconviction claims. After several more years, Hardin’s current attorney was appointed. Eight years after her appointment, the trial court held an evidentiary hearing on Hardin’s postconviction claims. The postconviction court denied Hardin’s motion after the hearing, and he appealed.
The court of appeals analyzed whether the excessively lengthy delay in the postconviction proceedings violated Hardin’s due process rights. Hardin argued that he should have been granted a new trial because the delay impaired his ability to present his claims for postconviction relief, as shown by the witnesses’ faded memories and the unavailability of certain records. The court of appeals disagreed with Hardin, but affirmed the postconviction court’s denial of his motion for relief. The court of appeals found that the length of the delay weighed in Hardin’s favor, the reason for the delay was mixed and therefore neutral, the defendant properly asserted his rights, and the delay did not prejudice Hardin. The court found that although some of the witnesses’ memories were dimmed, it was not so significant as to prejudice Hardin. The court emphasized that although it did not find prejudice, the lengthy delay is unacceptable in a legal system designed to provide speedy resolutions to criminal defendants.
The court of appeals next addressed Hardin’s contention that the postconviction court abused its discretion by not making findings of fact or conclusions of law as to whether his trial counsel was inefficient for failing to object to the trifurcation of the aggravated robbery charges. The court found that although the trial court did not directly address this issue, it made factual findings about Hardin’s lack of prejudice on all issues, therefore the trifurcation issue was presumably covered.
The court of appeals affirmed the postconviction court’s denial of Hardin’s motion for relief.
The Tenth Circuit Court of Appeals issued its opinion in United States v. Black on Monday, July 26, 2016.
The government charged multiple defendants, including James Black, with conspiracy to distribute cocaine in late 2007. After withdrawing and reasserting indictments, Black was eventually charged with conspiring to distribute cocaine, using a telephone in committing the conspiracy, and possessing with intent to distribute cocaine in the government’s Fifth Superseding Indictment. A jury convicted Black on all charges and he was sentenced to 360 months’ imprisonment.
On appeal, Black argued that the trial court plainly erred in calculating his Guidelines range at 360 months to life. The government conceded the error, and the Tenth Circuit agreed. Black should have been sentenced with a total offense level of 34, not 37, reducing his Guidelines range to 262 to 327 months’ imprisonment. The Tenth Circuit remanded for resentencing.
Black also argued that his Sixth Amendment speedy trial rights were violated. The Tenth Circuit evaluated the delays, finding a total delay of 23 and a half months. The Tenth Circuit considered the Barker factors, and found that the length of the delay weighed strongly in Black’s favor. The Tenth Circuit then dissected each delay, attributing portions to Black for the periods of time in which he filed motions or requested continuances and to the government for periods in which they did not vehemently prosecute Black. After carefully considering each time period, the Tenth Circuit determined that the government was responsible for about 7 months of the delay and Black was responsible for about 12 months. The Tenth Circuit next assessed whether the delays were purposeful attempts by the government to strategically position itself and agreed with Black’s concession that they were not. Next, the Tenth Circuit considered whether Black forcefully and frequently asserted his speedy trial rights, and found that only one of his speedy trial assertions was forceful. The Tenth Circuit noted that Black’s counsel’s speedy trial objections were especially weak when he remarked that he was only asserting speedy trial to preserve his previous motion. Finally, the Tenth Circuit found that Black could not show he was prejudiced by the delay. After balancing all the factors, the Tenth Circuit found that the majority weighed in favor of the government.
The Tenth Circuit remanded for resentencing but found no violation of Black’s constitutional right to a speedy trial.
The Tenth Circuit Court of Appeals issued its opinion in United States v. Hicks on Friday, March 6, 2015.
Brian Hicks was arrested following a shooting in 2005, and at the time of arrest he was wearing a bulletproof vest and carrying a loaded .40 caliber Glock magazine. Because of his previous felony convictions, he was not allowed to possess these items, and was charged with one count each of possession of firearms and body armor by a convicted felon. More than a year later, Denver’s Metro Gang Task Force intercepted a call suggesting that Hicks was going to meet a drug dealer to purchase cocaine. After the meeting, police attempted a traffic stop, which turned into a chase. During the chase, Hicks threw a black bag from his car. Police later apprehended Hicks and recovered the bag, which contained several kilograms of cocaine. Hicks was indicted on multiple charges related to conspiracy to distribute cocaine in 2007. The government and Hicks engaged in a years-long period of motions and continuances, and finally on August 1, 2012, the district court ruled that all remaining issues had been resolved and the matter could be set for trial. On August 2, 2012, the government moved for the court to set a trial date. The district court ruled on this motion on September 27, 2012, when it scheduled a status conference and hearing on all pending motions for November 28, 2012. However, on November 15, Hicks filed two motions to dismiss on speedy trial grounds, one based on violation of his Sixth Amendment right to a speedy trial and one based on violations of the Speedy Trial Act. The district court denied both motions. Hicks eventually pleaded guilty in February 2014, reserving the right to appeal the denial of his speedy trial motions.
The Tenth Circuit first reviewed the denial of Hicks’ Sixth Amendment violation claims. The Tenth Circuit found the length of the delay, five and a half years, was presumptively prejudicial, and turned to the reason for the delay. Most of the delay was attributable to Hicks—he filed over forty unique motions, including several requesting deadline extensions or continuances; he changed counsel several times during the proceedings; and he requested that his federal prosecution be delayed until the conclusion of his state court proceedings. Although some of the delay was attributable to the prosecution, the majority of it was because of Hicks, and this factor weighed against him. Next, the Tenth Circuit evaluated whether Hicks asserted his right to a speedy trial, and found that although he first asserted his right in January 2008, he did not renew his assertion until August 2011. This weighed against Hicks also. Finally, the Tenth Circuit evaluated whether the delay prejudiced Hicks. Because he was already serving a life sentence on different charges, the delay did not cause pre-trial confinement concerns. Hicks also failed to make a particularized showing of increased anxiety from the delay, leaving Hicks to show that the delay “fundamentally hampered his ability to assist in his defense.” Hicks did not make this showing; although he was housed in the administrative segregation unit of the prison, he was generally able to meet with his legal counsel at any time during business hours, and he made numerous motions for continuances and extensions of time. The Tenth Circuit found no Sixth Amendment violation and affirmed the district court’s denial of Hicks’ motion.
Turning next to the Speedy Trial Act claims, the Tenth Circuit evaluated whether the delay in setting Hicks’ hearing exceeded the Speedy Trial Act’s 70-day limit, and found that it did. The district court issued its order resolving all remaining issues on August 1, 2012, and the Speedy Trial clock started ticking then. It was tolled for thirty days by the prosecution’s motion to set the trial, but the 70 days expired on November 10, 2012, and Hicks’ Speedy Trial Act rights were therefore violated. The Tenth Circuit reversed the district court’s denial of Hicks’ Speedy Trial motion and remanded with orders to vacate his convictions and determine if they should be vacated with or without prejudice.
The Colorado Court of Appeals issued its opinion in People v. Nelson on Thursday, December 4, 2014.
Rental Vehicle—Speedy Trial—Jury Instructions—Affirmative Defense—Consent—Mistake of Fact.
Defendant rented a vehicle from Mesa Motors, Inc. (Mesa). After using the vehicle for about two months, defendant told Mesa’s owner he wanted to buy the vehicle and agreed to pay any accrued rental charges up to the date of purchase; however, defendant did not pay the purchase price or the unpaid rental charges. Mesa’s owner went to the address defendant had provided him and discovered that defendant no longer lived there. He reported the vehicle stolen and left a message with defendant to that effect, at which point defendant surrendered the vehicle. A jury found defendant guilty of aggravated motor vehicle theft.
On appeal, defendant contended that his statutory right to a speedy trial was violated. The prosecutor dismissed the original charges against defendant and later refiled them. The district court found, with record support, that the prosecutor had not dismissed the charges and refiled them to avoid the statutory six-month deadline. Because defendant’s trial began within six months after he pleaded not guilty to the refiled charges, there was no violation of his statutory right to a speedy trial.
Defendant also contended that his right to a speedy trial under both the U.S. and Colorado Constitutions was violated. The period during which defendant originally faced the charges must be included in considering his constitutional speedy trial claim. Adding the period from the initial filing of the charges to the dismissal of the charges (229 days) to the period from the refiling of the charges to the beginning of trial (189 days) equals more than one year, a presumptively prejudicial length of time. However, because defendant failed to establish any significant prejudice by the delay, he was not denied his constitutional right to a speedy trial.
Defendant further argued that the court erred in denying his two jury instructions on purported affirmative defenses: consent and mistake of fact. Though consent and mistake of fact can be affirmative defenses (depending on the elements of the charged crime), they were not affirmative defenses in this case because defendant denied committing the crime. Therefore, although defendant was free to argue that the evidence of consent and mistake of fact showed that he had not deceived the victim, he was not entitled to separate instructions on those defenses characterizing them as affirmative defenses, which the prosecution was required to disprove beyond a reasonable doubt. The judgment was affirmed.
The Tenth Circuit Court of Appeals issued its opinion in United States v. Banks on Monday, August 4, 2014.
Defendants Banks, Barnes, Harper, Stewart, Walker, and Zirpolo operated or were associated with the entities Leading Team, Inc. (LT) and DKH, Inc. (DKH). In 2003, Defendants stopped operating LT and began operating a third entity, IRP Solutions Corporation (IRP). IRP was formed to develop computer software, and one of its software offerings was purportedly designed for sale to law enforcement to develop a nationwide database for law enforcement.
Beginning in about October 2002, Defendants began contacting various staffing agencies and soliciting payrolling services, in which the staffing agency would hire and pay Defendant’s choice of employee and then Defendant would repay the staffing agencies, plus a small increase for profit for the staffing agency. In order to convince the staffing agencies to agree to the payrolling services, Defendants claimed that their law enforcement database software was on the verge of being sold to the Department of Justice and several law enforcement agencies. Over the course of several years, Defendants received over $5 million in staffing payments from 42 different staffing companies that they did not repay.
Defendants were indicted in June 2009, and in 2011 they were convicted after a jury trial of several counts of wire fraud and mail fraud, and conspiracy to commit wire fraud and mail fraud, and sentenced to various terms of imprisonment ranging from 87 months to 135 months. They appealed, asserting four issues: (1) their speedy trial right was violated when the district court granted four continuances at Defendants’ request; (2) the district court compelled co-defendant Barnes to testify in violation of his Fifth Amendment privilege against self-incrimination; (3) the district court abused its discretion by excluding the testimony of two of Defendants’ potential witnesses; and (4) the cumulative effect of the court’s otherwise harmless errors necessitated reversal.
The Tenth Circuit first examined the speedy trial claim. Four different times, Defendants requested continuances from the district court. Defendants asserted that, due to the prolonged investigation beginning in 2004, discovery in the case was voluminous (totaling over 20,000 pages of documents), and they would not be able to adequately prepare for trial without the continuances. Each time, the district court examined the circumstances and issued findings that the ends of justice served by granting the continuance outweighed the public’s and Defendants’ interest in the speedy trial. Although the total continuance time was quite long, the Tenth Circuit determined no error in the district court’s decisions, finding instead that the unique circumstances of this case, including the high volume of discovery materials and potential witnesses, supported the district court’s decisions to grant continuances. Further, the Tenth Circuit noted that each continuance was requested by Defendants, and they could not assert prejudice from delays they requested.
Next, the Tenth Circuit turned to Defendants’ claim that Barnes was compelled to testify in violation of his Fifth Amendment privilege against self-incrimination and the district court declined to give a curative instruction to satisfy the Sixth Amendment. The Tenth Circuit found that although the district court requested the defense to call a witness, Barnes was not the only witness available to testify at that time, and he testified voluntarily at the behest of his co-defendants. Further, when offered a curative instruction, Barnes declined. The Tenth Circuit found no error in the actions of the district court.
As to the third claim regarding the district court’s denial of testimony by the two defense witnesses, the Tenth Circuit again found no error. The district court denied the testimony because Defendants failed to disclose the witnesses in violation of Federal Rule of Criminal Procedure 16 and Federal Rule of Evidence 702. Although Defendants concede that they violated Rule 16 and FRE 702, they argue that the record reflects their efforts were made in good faith and the court’s chosen remedy of exclusion violated precedent. The Tenth Circuit rejected these claims. The district court had allowed testimony similar to that proffered from the two rejected witnesses, and concluded that the testimony of those two witnesses would be cumulative. The Tenth Circuit found no abuse of discretion in this action.
Finally, the Tenth Circuit addressed Defendants’ argument that the effect of the harmless errors in their case caused cumulative error requiring reversal. The Tenth Circuit rejected this claim, noting that Defendants failed to show any error, much less error requiring reversal.
The Colorado Court of Appeals issued its opinion in People v. Curren on Thursday, May 8, 2014.
Interlocutory Appeal—Speedy Trial—Attorney–Client Privilege—Waiver—Rebuttal Witness.
In 2002, defendant was charged with two counts of first-degree murder after deliberation, two counts of felony murder, two counts of conspiracy to commit first degree murder, two counts of conspiracy to commit aggravated robbery, and two counts of aggravated robbery. The jury convicted defendant on the two felony murder counts and one count of aggravated robbery. However, defendant’s convictions were vacated, and he was granted a new trial because his trial attorney had represented him while having an actual conflict of interest. The prosecution filed an appeal to challenge this ruling, which tolled the speedy trial period. The appeal was denied, and the jury convicted defendant of accessory after the fact to first-degree murder.
On appeal, defendant asserted that the trial court violated his statutory and constitutional rights to a speedy trial. For purposes of CRS § 18-1-405(6)(b), an appeal attacking a dismissal of one or more counts is considered interlocutory and the period of delay attributable to the appeal is properly excluded from the speedy trial period. Here, the prosecution’s appeal was not frivolous and addressed whether the post-conviction court properly vacated defendant’s convictions for first-degree murder and aggravated robbery. Further, nothing in Crim.P. 35(c)(3)(V) requires the prosecution to seek a stay to toll the speedy trial period. Finally, defendant suffered no prejudice from the delay. Therefore, the speedy trial period was tolled during the prosecution’s appeal, and defendant’s statutory and constitutional speedy trial rights were not violated.
Defendant next asserted that the trial court violated his rights to remain silent, to testify, to counsel, and to attorney–client privilege by allowing the prosecution to call his first trial attorney to testify against him at his second trial. Here, defendant waived the attorney–client privilege by testifying about his communications with his previous counsel, which opened the door to rebuttal testimony regarding that representation. The prosecution called defendant’s previous counsel to testify as a rebuttal witness to refute certain parts of defendant’s testimony in his case-in-chief. Therefore, the trial court did not abuse its discretion in allowing defendant’s first trial attorney to testify against him as a rebuttal witness at his second trial.


§ 520.38 Albendazole oral dosage forms.
§ 520.82 Aminopropazine oral dosage forms.
§ 520.82b Aminopropazine and neomycin.
§ 520.88 Amoxicillin oral dosage forms.
§ 520.88a Amoxicillin trihydrate film-coated tablets.
§ 520.88b Amoxicillin trihydrate for oral suspension.
§ 520.88c Amoxicillin trihydrate oral suspension.
§ 520.88d Amoxicillin trihydrate soluble powder.
§ 520.88e Amoxicillin trihydrate boluses.
§ 520.88f Amoxicillin trihydrate tablets.
§ 520.88g Amoxicillin trihydrate and clavulanate potassium tablets.
§ 520.88h Amoxicillin trihydrate and clavulanate potassium for oral suspension.
§ 520.90 Ampicillin oral dosage forms.
§ 520.90d Ampicillin for oral suspension.
§ 520.90e Ampicillin for soluble powder.
§ 520.110 Apramycin sulfate soluble powder.
§ 520.154 Bacitracin oral dosage forms.
§ 520.154b Bacitracin methylenedisalicylate and streptomycin sulfate powder.
§ 520.154c Bacitracin zinc soluble powder.
§ 520.284 Cambendazole oral dosage forms.
§ 520.301 Caramiphen ethanedisulfonate and ammonium chloride tablets.
§ 520.390 Chloramphenicol oral dosage forms.
§ 520.390c Chloramphenicol palmitate oral suspension.
§ 520.420 Chlorothiazide tablets and boluses.
§ 520.434 Chlorphenesin carbamate tablets.
§ 520.443 Chlortetracycline tablets and boluses.
§ 520.445 Chlortetracycline and sulfamethazine powder.
§ 520.446 Clindamycin capsules and tablets.
§ 520.530 Cythioate oral liquid.
§ 520.540 Dexamethasone oral dosage forms.
§ 520.540b Dexamethasone tablets and boluses.
§ 520.540c Dexamethasone chewable tablets.
§ 520.563 Dexamethasone chewable tablets.
§ 520.580 Dichlorophene and toluene.
§ 520.600 Dichlorvos capsules and pellets.
§ 520.620 Diethylcarbamazine oral dosage forms.
§ 520.622 Diethylcarbamazine citrate oral dosage forms.
§ 520.622a Diethylcarbamazine citrate tablets.
§ 520.622b Diethylcarbamazine citrate syrup.
§ 520.622c Diethylcarbamazine citrate chewable tablets.
§ 520.623 Diethylcarbamazine and oxibendazole chewable tablets.
§ 520.763 Dithiazanine oral dosage forms.
§ 520.763c Dithiazanine iodide and piperazine citrate suspension.
§ 520.903 Febantel oral dosage forms.
§ 520.903d Febantel and praziquantel paste.
§ 520.905 Fenbendazole oral dosage forms.
§ 520.1044 Gentamicin sulfate oral dosage forms.
§ 520.1044a Gentamicin sulfate oral solution.
§ 520.1044b Gentamicin sulfate pig pump oral solution.
§ 520.1044c Gentamicin sulfate powder.
§ 520.1060 Glucose and glycine.
§ 520.1120 Haloxon oral dosage forms.
§ 520.1193 Ivermectin tablets and chewables.
§ 520.1196 Ivermectin and pyrantel tablets.
§ 520.1197 Ivermectin sustained-release bolus.
§ 520.1198 Ivermectin and praziquantel paste.
§ 520.1199 Ivermectin, pyrantel, and praziquantel tablets.
§ 520.1200 Ivermectin, fenbendazole, and praziquantel tablets.
§ 520.1204 Kanamycin, bismuth subcarbonate, activated attapulgite.
§ 520.1242b Levamisol boluses or oblets.
§ 520.1242c Levamisol and piperazine.
§ 520.1242e Levamisole hydrochloride effervescent tablets.
§ 520.1242g Levamisole resinate and famphur paste.
§ 520.1263a Lincomycin tablets and syrup.
§ 520.1265 Lincomycin and spectinomycin powder.
§ 520.1326 Mebendazole and trichlorfon oral dosage forms.
§ 520.1326a Mebendazole and trichlorfon powder.
§ 520.1326b Mebendazole and trichlorfon paste.
§ 520.1330 Meclofenamic acid granules.
§ 520.1331 Meclofenamic acid tablets.
§ 520.1409 Methylprednisolone and aspirin.
§ 520.1443 Milbemycin oxime and lufenuron.
§ 520.1445 Milbemycin oxime and praziquantel.
§ 520.1447 Milbemycin oxime, lufenuron, and praziquantel tablets.
§ 520.1450 Morantel tartrate oral dosage forms.
§ 520.1450a Morantel tartrate bolus.
§ 520.1450b Morantel tartrate cartridge.
§ 520.1450c Morantel tartrate sustained-release trilaminate cylinder/sheet.
§ 520.1453 Moxidectin and praziquantel gel.
§ 520.1628 Oxfendazole powder and pellets.
§ 520.1631 Oxfendazole and trichlorfon paste.
§ 520.1660a Oxytetracycline and carbomycin.
§ 520.1660b Oxytetracycline hydrochloride capsules.
§ 520.1660c Oxytetracycline hydrochloride tablets/boluses.
§ 520.1696b Penicillin G powder.
§ 520.1696c Penicillin V powder.
§ 520.1696d Penicillin V tablets.
§ 520.1720 Phenylbutazone oral dosage forms.
§ 520.1720a Phenylbutazone tablets and boluses.
§ 520.1802 Piperazine-carbon disulfide complex oral dosage forms.
§ 520.1802a Piperazine-carbon disulfide complex suspension.
§ 520.1802b Piperazine-carbon disulfide complex boluses.
§ 520.1802c Piperazine-carbon disulfide complex with phenothiazine suspension.
§ 520.1803 Piperazine citrate capsules.
§ 520.1805 Piperazine phosphate with thenium closylate tablets.
§ 520.1846 Polyoxyethylene (23) lauryl ether blocks.
§ 520.1871 Praziquantel and pyrantel.
§ 520.1872 Praziquantel, pyrantel pamoate, and febantel tablets.
§ 520.1920 Prochlorperazine and isopropamide.
§ 520.1921 Prochlorperazine, isopropamide, and neomycin.
§ 520.2041 Pyrantel pamoate chewable tablets.
§ 520.2042 Pyrantel pamoate tablets.
§ 520.2043 Pyrantel pamoate suspension.
§ 520.2044 Pyrantel pamoate paste.
§ 520.2045 Pyrantel tartrate powder.
§ 520.2046 Pyrantel tartrate pellets.
§ 520.2100 Selenium and vitamin E.
§ 520.2123 Spectinomycin oral dosage forms.
§ 520.2134 Spinosad and milbemycin.
§ 520.2218 Sulfamerazine, sulfamethazine, and sulfaquinoxaline powder.
§ 520.2220 Sulfadimethoxine oral dosage forms.
§ 520.2220a Sulfadimethoxine oral solution and soluble powder.
§ 520.2220e Sulfadimethoxine extended-release bolus.
§ 520.2220f Sulfadimethoxine and ormetoprim tablet.
§ 520.2260 Sulfamethazine oral dosage forms.
§ 520.2260a Sulfamethazine oblet, tablet, and bolus.
§ 520.2260b Sulfamethazine sustained-release boluses.
§ 520.2260c Sulfamethazine sustained-release tablets.
§ 520.2261 Sulfamethazine sodium oral dosage forms.
§ 520.2280 Sulfamethizole and methenamine.
§ 520.2325 Sulfaquinoxaline oral dosage forms.
§ 520.2325a Sulfaquinoxaline powder and solution.
§ 520.2345f Tetracycline phosphate complex and sodium novobiocin capsules.
§ 520.2345g Tetracycline hydrochloride and sodium novobiocin tablets.
§ 520.2345h Tetracycline hydrochloride, sodium novobiocin, and prednisolone tablets.
§ 520.2380 Thiabendazole oral dosage forms.
§ 520.2380a Thiabendazole top dressing and mineral protein block.
§ 520.2380b Thiabendazole drench or paste.
§ 520.2380d Thiabendazole and piperazine citrate.
§ 520.2380e Thiabendazole and triclorfon.
§ 520.2380f Thiabendazole and piperazine phosphate.
§ 520.2473 Tioxidazole oral dosage forms.
§ 520.2520 Trichlorfon oral dosage forms.
§ 520.2520a Trichlorfon and atropine.
§ 520.2520d Trichlorfon, phenothiazine, and piperazine dihydrochloride powder.
§ 520.2604 Trimeprazine and prednisolone tablets.
§ 520.2605 Trimeprazine and prednisolone capsules.
§ 520.2610 Trimethoprim and sulfadiazine tablets.
§ 520.2611 Trimethoprim and sulfadiazine paste.
§ 520.2612 Trimethoprim and sulfadiazine suspension.
§ 520.2613 Trimethoprim and sulfadiazine powder.
40 FR 13838, Mar. 27, 1975, unless otherwise noted.