McClarin v. City of New York

23-7310 McClarin v. City of New York 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 ------ 4 August Term, 2024 5 (Argued: November 13, 2024 Decided: July 13, 2026) 6 Docket No. 23-7310 7 ____________________________________________________________ 8 JUSTIN McCLARIN, 9 10 Plaintiff-Appellee, 11 12 - v. - 13 14 THE CITY OF NEW YORK, DAVID GRIECO, MICHAEL 15 ARDOLINO, DAVID QUATTROCHI, WILLIAM SCHUMACHER 16 & SGT. ROBERT MARTINEZ, 17 18 Defendants-Appellants*. * Defendant David Quattrocchi's name is misspelled "Quattrochi" in the operative complaint and in most of the captions in this litigation. "Because legal research catalogs and computers are governed by the principle of consistency, not correctness, we feel constrained to adhere to the erroneous spelling," Ford Motor Credit Co. v. Milhollin, 444 U.S 555, 555 n.* (1980), in this caption and in the text of our opinion. The Clerk of Court is instructed (continued...) 1 ____________________________________________________________ 2 3 Before: KEARSE, RAGGI, and KAHN, Circuit Judges. 4 Appeal from so much of a judgment of the United States District Court 5 for the Eastern District of New York, entered following a jury trial before Frederic 6 Block, Judge, as (1) orders three individual defendants to pay plaintiff $40,000 in 7 compensatory damages, plus punitive damages totaling $275,000, on his claims under 8 42 U.S.C. § 1983 for an unlawful search, and (2) orders those three defendants plus 9 a fourth individual defendant to pay plaintiff $75,000 in compensatory damages, plus 10 punitive damages totaling $500,000, on his § 1983 claims of malicious prosecution. 11 On appeal, these four defendants contend that the district court erred in denying their 12 posttrial motions (a) for judgment in their favor as a matter of law on the claims of 13 unlawful search, and/or (b) for a new trial on both sets of claims, principally 14 contending that the court should not have excluded recordings of statements made 15 by plaintiff in certain telephone conversations. Although we reject defendants' 16 contention that they were entitled to judgment as a matter of law dismissing 17 plaintiff's claims of unlawful search, we conclude that the district court should have (...continued) to correct the official caption in this appeal to conform with the above. -2-  1 allowed the jury to hear the proffered recorded conversations, which were relevant 2 to assessments of the credibility of plaintiff and his key witness, and we thus vacate 3 the judgment against the four defendants and remand for a new trial of plaintiff's 4 claims of unlawful search and malicious prosecution. 5 Vacated and remanded. 6 EYLAN SCHULMAN, New York, New York (Moskowitz 7 Colson Ginsberg & Schulman, New York, New York; 8 Michael Hueston, Brooklyn, New York; Richard 9 Cardinale, Brooklyn, New York, on the brief), for 10 Plaintiff-Appellee. 11 12 LAUREN L. O'BRIEN, Assistant Corporation Counsel 13 of the City of New York, New York, (Sylvia O. 14 Hinds-Radix, Corporation Counsel of the City of 15 New York, Richard Dearing, Devin Slack, New York, 16 New York, on the brief), for Defendants-Appellants. 17 18 19 20 21 KEARSE, Circuit Judge: 22 Defendants David Grieco, Michael Ardolino, and William Schumacher, 23 officers in the New York City Police Department ("NYPD"), and defendant Robert 24 Martinez, a NYPD Sergeant (collectively the "Officers"), appeal from so much of a 25 judgment entered in the United States District Court for the Eastern District of New -3-  1 York following a jury trial before Frederic Block, Judge, as orders them to pay 2 compensatory and punitive damages to plaintiff Justin McClarin (or "Justin") on his 3 claims brought under 42 U.S.C. § 1983 for an unlawful search and malicious 4 prosecution. The jury awarded McClarin compensatory damages of $40,000 against 5 Grieco, Ardolino, and Martinez, plus punitive damages against those defendants in 6 varying amounts totaling $275,000, for unlawful search. It awarded McClarin 7 compensatory damages of $75,000 against Grieco, Ardolino, Martinez, and 8 Schumacher, plus punitive damages against those defendants in varying amounts 9 totaling $500,000, for malicious prosecution. On appeal, these defendants contend 10 that the district court erred in denying their posttrial motions (a) for judgment in their 11 favor as a matter of law on the claims of unlawful search, and/or (b) for a new trial on 12 both sets of claims, principally contending that the court should not have excluded 13 recordings of statements made by McClarin in certain telephone conversations. 14 Although we reject defendants' contention that they were entitled to judgment as a 15 matter of law dismissing McClarin's claims of unlawful search, we conclude that the 16 district court should have allowed the jury to hear the proffered recorded 17 conversations, which were relevant to assessments of the credibility of McClarin and 18 his key witness, and we thus vacate the judgment against these four defendants and -4- 1 remand for a new trial of McClarin's claims against them for unlawful search and 2 malicious prosecution. 3 4 I. BACKGROUND 5 6 This action has its origin in events that occurred in December 2015. The 7 parties' trial testimony proffered the following divergent versions. 8 9 A. Events of December 12-13, 2015 10 1. McClarin's Version 11 McClarin testified, inter alia, that in the Spring of 2015 he had had a 12 budding relationship with an attractive woman named Samantha Miranda. Then for 13 a period of some months he had no contact with her; when he next saw her in June, 14 she appeared emaciated, and he learned that she had a drug addiction. Miranda told 15 him that she was living on the street, and that her aunt had "kicked her out." 16 (A.1121.) 17 McClarin testified that, in an effort to help Miranda, he rented a small 18 basement "apartment" (A.1222.) for her at 393 Warwick Street in Brooklyn ("393 -5-  1 Warwick"). The apartment had an entrance separate from the main part of the 2 building; it had a kitchen area but no bathroom. Miranda agreed that she would live 3 there and try to take control of her life. McClarin stayed at the apartment with 4 Miranda three or four nights a week, when he was not staying at his mother's house 5 a few blocks away. 6 McClarin testified that near midnight on December 12, 2015, he and 7 Miranda were in the apartment at 393 Warwick. At about 3 a.m. they awoke to the 8 sounds of people banging at the door of the apartment and yelling "[o]pen the door 9 before we start blasting." (A.1150, 1151.) McClarin asked whether they had a 10 warrant; neither McClarin nor Miranda opened the door. NYPD officers kicked the 11 door open; six officers, including Ardolino, Grieco, and Martinez, entered without a 12 warrant, with guns drawn. McClarin testified that Ardolino, Grieco, and Martinez 13 caused severe damage to the apartment, and, without cause, arrested him. Ardolino 14 grabbed McClarin and, along with Grieco, removed him from the apartment; he was 15 handcuffed and taken to the front of the building, with Grieco telling McClarin "we've 16 been looking for you for a long time." (A.1173.) Ardolino and Grieco left McClarin 17 with Schumacher and NYPD Officer David Quattrochi on the front steps of 393 18 Warwick. -6-  1 2. Miranda's Description of the Entry and Search at 393 Warwick 2 Miranda likewise testified that she and McClarin had been awakened by 3 NYPD officers banging on their door and shouting at them to open the door or they 4 would kick it in. Miranda testified that neither she nor McClarin opened the door to 5 them. McClarin asked whether they had a warrant, but the officers just said "[o]pen 6 the door before we start shooting" (A.1357) and kicked the door in. About five 7 officers, including Ardolino and Grieco, rushed in, holding guns. Miranda said that 8 the officers ignored her, ran past her, and started ransacking the apartment. She 9 testified that during their search the officers "destroyed everything," breaking 10 furniture, picking up objects and throwing them on the floor, and punching and 11 kicking the walls. (A.1356.) (See also Part I.A.4. below.) 12 13 3. The Officers' Version of the Events 14 Ardolino and other Officers testified about the events of December 12-13, 15 and described information NYPD had received that led officers to go to 393 Warwick 16 on the night of McClarin's arrest. 17 18 -7- 1 a. Police Receive a Complaint that Miranda Is Being Held Against Her 2 Will and Beaten by McClarin 3 NYPD officers at the 75th Precinct in Brooklyn ("75th Precinct" or 4 "Precinct") had received a call late on the night of December 12, reporting an ongoing 5 assault--stating that a woman was being held against her will, drugged, and beaten-- 6 at an apartment on Warwick Street. Ardolino learned of the call after the start of his 7 tour of duty, which began at 10 p.m. (See A.1322, 1326, 1538.) The caller had 8 identified herself as Marisol Lopez and provided her phone number. Ardolino, 9 Sergeant Martinez, and other officers sought to investigate. 10 Ardolino telephoned Lopez, who acknowledged that she had called; she 11 said the victim was her niece, Samantha Miranda. Lopez reiterated that Miranda was 12 being held hostage on Warwick Street. She agreed to speak further in person with 13 Ardolino and other officers and gave Ardolino her address. Ardolino, Martinez, and 14 other officers went to Lopez's apartment, where Lopez described McClarin and the 15 vehicle he drove, and identified him by name as the person abusing her niece. Lopez 16 stated that she had been told by Miranda herself that McClarin was beating her and 17 forcing her to use drugs. Lopez also said that when Miranda would attempt to leave 18 the apartment in which McClarin was holding her, McClarin would find her and -8-  1 force her to return to that apartment. 2 Lopez showed Ardolino and Martinez a text conversation between 3 herself and McClarin, which read as follows: 4 [McClarin]: I'll keep her till she starts withdrawing then I'll 5 bring her to u . . . . that's the most I can do. 6 [Lopez:] Yeah so u can beat her ass right women beater 7 [McClarin]: Lol 8 [McClarin]: Maybe 9 [McClarin]: Maybe not 10 [McClarin]: Ain't nooooo tellin[.] 11 (Declaration of Zachary Kalmbach dated January 27, 2023, in Support of Defendants' 12 Post-Trial Motions Pursuant to Fed. R. Civ. P. 50 and 59 ("Kalmbach 2023 13 Declaration"), Exh. B at 1-2.) 14 Lopez offered to show Ardolino and Martinez where McClarin was 15 holding Miranda captive. She guided them to 393 Warwick and pointed to the 16 basement apartment. Ardolino and Martinez took Lopez back to her own building 17 and decided to go to 393 Warwick to investigate further. Schumacher and Grieco also 18 headed to 393 Warwick. -9-  1 b. A Hiatus in the Officers' Investigation of the Alleged Abduction of and 2 Assaults on Miranda 3 Before the Officers reached 393 Warwick, where they had been informed 4 Miranda was being held and beaten, Schumacher and Grieco--soon joined by 5 Ardolino and Martinez--noticed two men in front of 399 Warwick Street. According 6 to various Officers, they saw one man standing on the sidewalk and talking to a man 7 who was sitting in the driver seat of a car with the door open; both men were 8 drinking from cups, and there was an open liquor container on the top of the car. The 9 Officers spent most of the next hour questioning the two men, searching the car, and 10 searching the 399 Warwick Street apartment of the man who had been standing and 11 drinking on the sidewalk. And having found in the car or the apartment a bullet, a 12 firearm, suspicious credit cards, and plastic bags of drugs, the Officers arrested those 13 two men. Grieco and Ardolino took one of the men to the 75th Precinct for 14 processing; other officers took the other man. 15 The officers involved in processing the men remained at the Precinct 16 "[l]ess than an hour" before returning to 393 Warwick to join other officers who had, 17 by then, proceeded to 393 Warwick. (A.1335.) Grieco testified that when processing 18 the men at the Precinct, he felt no pressing need to get to 393 Warwick: -10-  1 Q. . . . [A]t that point, did you feel some urgency to go and 2 enter 393 Warwick Street? 3 A. I wouldn't say urgency, no. 4 Q. Were you concerned about the well-being of this woman 5 who was supposedly being held in 393 Warwick at the time that 6 you took Anthony Modeste from 399 Warwick to the 75th 7 Precinct? 8 A. I mean, we had information that we were going to 9 investigate it. I wouldn't say that it was to the level of urgent. 10 Q. Well, what information did you have at this point in 11 your mind? . . . . 12 A. That a woman was being held against her will and being 13 beaten. 14 Q. So you didn't deem that information to be urgent, that 15 a woman was being held against her will and being beaten? 16 A. I mean, it was serious. I wouldn't say urgent. 17 (A.1833-34.) 18 Ardolino testified that, during the time that the Officers were arresting 19 and processing the two men, he was "concerned about Samantha's safety"; but he 20 stated that "the investigation was still ongoing. Nothing was verified at that time." 21 (A.1336.) 22 Martinez similarly testified that he had not considered that the -11-  1 information he and the other officers received from Lopez showed an emergency: 2 Q. . . . [W]ith the information that this woman was being 3 assaulted and physically harmed and not allowed to leave and 4 held against her will, you didn't consider that an emergency; is 5 that what you're saying? 6 A. No, I did not. 7 (A.1692.) Martinez was aware that Lopez had shown Ardolino text messages from 8 McClarin, but was not convinced: 9 Q. . . . [F]rom your perspective, did you believe that the text 10 messages substantiated the information that led you out there to 11 start with? 12 A. Well, I--"substantiate" is a strong word. . . . 13 .... 14 THE WITNESS: It was . . . related to . . . what she was 15 saying to entice us to--we needed to do further investigations. 16 (A.1690-91 (emphases added).) 17 18 c. "Miranda [O]pened the [D]oor" To Let Officers Enter 19 When the Officers eventually arrived at 393 Warwick, it was the middle 20 of the night. Schumacher--and Quattrochi who arrived separately--remained outside; 21 Ardolino went to the front door of the building; Grieco, Martinez, and other officers -12-  1 went to the side-door entrance to the basement apartment. Martinez testified that 2 Grieco knocked on the door to the apartment, following which, Martinez could hear 3 a male voice inside the apartment shouting aggressively, "[c]lose the door. Don't let 4 them in." (A.1703.) Martinez testified that despite that urging, at some point 5 "Samantha Miranda opened the door. . . ." (A.1704.) 6 Grieco testified that he had knocked on the door, and he was the first 7 officer to enter. He said he had knocked and kicked, but did not kick the door in. He 8 testified that "[t]hey opened the door" (A.1838); his recollection was that the door was 9 opened by McClarin, not Miranda, although he said they were both in the doorway. 10 Grieco testified that when the door was opened, he saw Miranda's injuries, so he 11 immediately grabbed McClarin and handed him off to another officer to get him out 12 of the apartment. Grieco remembered seeing Miranda's injuries, but did not 13 remember her saying anything. 14 Ardolino testified that when he entered the apartment, he observed that 15 the conditions were "extremely poor," with "garbage on the floor, clothes thrown 16 about the room," and drugs, a scale, and bullets "in plain view." (A.1555.) Ardolino 17 testified that he photographed the boiler room part of the apartment, showing 18 containers of dirty water and a milk jug containing a liquid that appeared to be urine. -13-  1 Ardolino, like Grieco, testified that Miranda had visible injuries, which 2 had prompted them to remove McClarin from the apartment. Ardolino testified that 3 he offered Miranda medical treatment for her injuries numerous times, but she 4 repeatedly refused treatment. However, he testified that Miranda showed him her 5 injuries and allowed him to photograph them. 6 According to Ardolino, Miranda was "distraught" and said that in fact 7 McClarin had been keeping her in the apartment against her will and abusing her. 8 (A.1563.) Martinez testified that Miranda corroborated the bulk of Lopez's 9 allegations, describing how McClarin would prevent her from leaving the apartment, 10 assault her, give her drugs, break her phone, and force her to return to the apartment 11 if she ever left. "He made her clean herself in the boiler-room area in pans; made her 12 even use the bathroom there." (A.1778.) 13 Ardolino testified that Miranda voluntarily accompanied him and Grieco 14 to the Precinct and agreed to give a sworn statement. 15 16 4. Elicitation of a Sworn Statement from Miranda 17 Contrary to Ardolino's representations as to his solicitude for Miranda's 18 well-being after entering the apartment at 393 Warwick, Miranda testified that the -14-  1 Officers showed no interest in her until after they had finished searching the 2 apartment. Only then did they ask Miranda whether she was being held hostage. 3 Miranda testified that she told the Officers she was not being held 4 against her will; she informed Ardolino and Grieco that she in fact lived at 393 5 Warwick. But Ardolino responded that she should "stop lying," or she would "go[] 6 from . . . victim to perp real quick." (A.1360.) Ardolino and Grieco asked Miranda to 7 tell them where "the gun" was; Miranda denied that there was a gun in the apartment. 8 (Id.) Grieco then threatened that the Officers would "bring in the dogs and . . . if the 9 dogs sniff[ed] out the gun first," Miranda would go to jail. (A.1364.) 10 Miranda testified that Ardolino and Grieco eventually took her to the 11 75th Precinct. At the Precinct, Miranda showed them injuries she had sustained, 12 including a black eye and bruises on her arm, neck, and back, which she testified 13 were caused by punches from an ex-boyfriend on the afternoon of December 12. 14 Ardolino photographed the injuries. 15 Miranda testified that Ardolino instructed her to write a statement about 16 McClarin in her "own words" saying that she was "being held, kidnapped, and being 17 held hostage and forced to pee in cups." (A.1366-67.) Miranda told Ardolino and 18 Grieco that that was not true; but they responded that if she did not cooperate she -15-  1 would go to jail. Ardolino told her, "the faster you write this statement, the faster you 2 can go home." (A.1365.) Feeling that she had no choice but to comply, Miranda--on 3 a form alerting that false statements are punishable under N.Y. Penal Law § 210.45-- 4 wrote the following: 5 I was being held for 2 months. Forced to use the bathroom in 6 cups and . . . had to shower in boiler room in aluminum trays. If 7 i got away he will find me and tell me i had to go back. He 8 abused me, hitting, punching. . . . Justin McClarin would sit in 9 front of door and not let me leave. Justin McClarin would break 10 my phone so i wouldnt [sic] be able to make phone calls or call 11 police. When Justin McClarin would find me on the street he 12 would . . . always take me back. He would not let me leave the 13 house he would lock me in the room because he thought no one 14 knew where i was. He also would threaten to kill me. 15 (Plaintiff's Exh. 102, Statement of Allegations/Supporting Deposition by Samantha 16 Miranda at 1.) After Miranda finished writing that statement, Ardolino and Grieco 17 told her she could not return to 393 Warwick; they took her to Lopez's apartment. 18 At trial, Miranda admitted that she wrote the sworn statement, but she 19 testified that it was false and that she had written it only because she had been 20 coerced to do so. Ardolino testified that he had in no way coerced Miranda to write 21 the statement she had sworn was true. 22 As discussed in Part II.B. below, defendants on cross-examination of -16-  1 McClarin asked him whether he had offered Miranda money to testify for him at trial 2 or promised to pay her if he won, and McClarin denied that he had. Defendants' 3 attempted to impeach McClarin (and later Miranda) by proffering recorded telephone 4 conversations between McClarin and Miranda that could be interpreted as his making 5 such an offer or promise. The district court excluded those recordings on the ground 6 that they had not been disclosed to McClarin's attorneys prior to trial. 7 8 5. McClarin's Arrest and His Short-Lived Criminal Proceeding 9 McClarin had been arrested at approximately 3:30 am on December 13; 10 and two non-defendant officers took him to the 75th Precinct for processing. He was 11 placed in a holding cell until Ardolino--the arresting officer--and Grieco arrived. 12 McClarin testified that eventually, in an interrogation room with Ardolino and 13 Grieco, he was informed for the first time that he had been arrested for supposedly 14 kidnapping Miranda. However, Ardolino and Grieco offered McClarin a deal: If he 15 told them where they could find an illegal gun in his apartment, he would not be 16 charged with kidnapping. McClarin maintained that there was no gun in the 17 apartment. 18 Ardolino signed a Criminal Court complaint on December 13, 2015, -17-  1 charging McClarin with assault, attempted assault, menacing, harassment, three 2 counts of kidnapping, two counts of unlawful imprisonment, two counts of criminal 3 mischief, and three counts of criminal possession of a controlled substance. After 4 being arraigned, McClarin was detained at Rikers Island Correctional Facility 5 ("Rikers"). Five days later, he testified before a grand jury, which promptly declined 6 to indict him. McClarin was released from Rikers the next day, and some of the 7 charges against him were soon dismissed. The remaining charges were dismissed six 8 months later, in June 2016. 9 10 B. The Present Action 11 Following the dismissal of the criminal charges against him, McClarin 12 commenced the present action in 2016 under § 1983 and state law against five 13 individual police officers involved in his arrest and/or subsequent prosecution: 14 Ardolino, Grieco, Schumacher, Martinez, and Quattrochi. McClarin's amended 15 complaint asserted federal and state law claims against the Officers for unlawful 16 search, false arrest and state-law unlawful imprisonment, excessive force and state- 17 law assault and battery, failure to intervene, malicious prosecution, and state-law 18 supervisory liability. McClarin also asserted a § 1983 claim against Quattrochi for -18- 1 alleged use of excessive force at 393 Warwick by throwing McClarin to the ground 2 after he had been handcuffed; and he asserted a separate state-law claim for assault 3 and battery alleging that, while he was at the 75th Precinct, he was shot with a BB gun 4 by an unknown member of the NYPD. Against the City of New York ("City"), 5 McClarin asserted § 1983 claims for the individual officers' alleged constitutional 6 misconduct, citing Monell v. Department of Social Services, 436 U.S. 658 (1978) 7 ("Monell"); and he asserted respondeat superior claims under state-law. 8 All of McClarin's claims against the City and most of his claims against 9 the individual defendants were dismissed prior to trial on motions for summary 10 judgment. As McClarin has not cross-appealed, those claims do not require 11 discussion. 12 13 1. The Claims Presented to the Jury 14 The case proceeded to trial on McClarin's unlawful search claims against 15 Ardolino, Grieco, and Martinez; his malicious prosecution claim against Ardolino and 16 Grieco; his claims that Martinez and Schumacher culpably failed to intervene to 17 prevent the malicious prosecution by Ardolino and Grieco; his excessive force claim 18 against Quattrochi; and the claim that he was subjected to an assault and battery by -19-  1 a NYPD member at the 75th Precinct. The district court instructed the jury that, inter 2 alia, it must "return a separate verdict on each individual defendant on any given 3 claim" (A.764.), after evaluating McClarin's claims against each defendant 4 individually, not as a group. For example, as to the claims against Ardolino and 5 Grieco for malicious prosecution, the court instructed that McClarin was required to 6 prove each element of that tort separately for each defendant. (See A.769-70.) One 7 element of the malicious prosecution tort is a lack of probable cause for commencing 8 the proceeding. See, e.g., Manganiello v. City of New York, 612 F.3d 149, 160-61 (2d Cir. 9 2010). 10 11 2. The Verdict 12 The jury's verdict was largely in favor of McClarin, although it found that 13 he had not proven his claim against Quattrochi for use of excessive force, or his claim 14 that an unknown member of NYPD assaulted him at the 75th Precinct. As to his other 15 claims, the jury awarded McClarin a total of $115,000 in compensatory damages, and 16 $775,000 in punitive damages. 17 The jury found that McClarin had proven an unlawful search of 393 18 Warwick by Ardolino, Grieco, and Martinez, for which it awarded McClarin -20-  1 compensatory damages of $40,000. It awarded punitive damages for the unlawful 2 search in the amount of $75,000 each against Ardolino and Grieco, and $125,000 3 against Martinez. 4 The jury found that McClarin had proven his malicious prosecution 5 claims against Ardolino and Grieco, and he had proven his claims that Schumacher 6 and Martinez culpably failed to intervene to prevent malicious prosecution. For these 7 malicious prosecution claims, the jury awarded McClarin $75,000 in compensatory 8 damages. It also awarded him punitive damages in the amount of $50,000 against 9 Schumacher, and $150,000 each against Ardolino, Grieco, and Martinez. 10 11 12 3. The Posttrial Motions 13 Following the verdict, Ardolino, Grieco, Schumacher, and Martinez--who 14 had moved after the close of the evidence for dismissal of all of McClarin's claims 15 pursuant to Rule 50(a) of the Federal Rules of Civil Procedure ("Federal Civil Rules")-- 16 moved under Rule 50(b) for judgment as a matter of law, and alternatively moved 17 under Rule 59 for a new trial. Ardolino, Grieco, and Martinez argued principally that 18 they were entitled as a matter of law to judgment dismissing the claims of unlawful -21- 1 search--characterizing them as actually claims of unlawful entry--on the ground either 2 that the entry into 393 Warwick without a warrant was justified by exigent 3 circumstances or that they were entitled to qualified immunity. The Officers 4 contended that the claims against Ardolino and Grieco for malicious prosecution, and 5 against Martinez and Schumacher for failure to intervene to prevent malicious 6 prosecution, should be dismissed on the ground that the verdicts were against the 7 weight of the evidence. 8 Alternatively, the Officers requested a new trial on the grounds, inter alia, 9 (a) that the court erred in precluding their use of the recorded conversations between 10 McClarin and Miranda to impeach the credibility of those witnesses by showing that 11 McClarin had offered or promised money to Miranda to testify favorably for him in 12 the trial of this action; (b) that the court gave the jury erroneous instructions with 13 respect to the malicious prosecution claims; and (c) that the punitive damages awards 14 were unconscionably high. 15 McClarin opposed defendants' motions. He also asked the court to 16 reinstate his Monell claim against the City. 17 In a September 8, 2023 memorandum and order, the district court denied 18 all of the parties' posttrial motions. See McClarin v. City of New York, No. 16-CV-6846, -22-  1 2023 WL 5831059 (E.D.N.Y. Sept. 8, 2023) ("McClarin I"). As to the Officers' motion for 2 judgment as a matter of law dismissing the claims of unlawful search, the court stated 3 that their entitlement, without a warrant, to enter and search 393 Warwick on the 4 basis of exigent circumstances depended largely on what information the Officers had 5 and could reasonably act upon at the time they entered the apartment: 6 [W]hether the Officers reasonably believed exigent circumstances 7 existed here depends, at least, on (i) what information the Officers 8 received via the 911-report and, later, from Miranda's aunt 9 Marisol Lopez; (ii) what (if anything) police observed or heard at 10 the apartment prior to their warrantless entry; and (iii) the 11 credibility and relative weight assigned to Officers' testimony 12 about when (if ever) they perceived there to be an "emergency." 13 McClarin I, 2023 WL 5831059, at *1 (other internal quotation marks omitted). 14 The court noted that after "receiv[ing] information from the 911 report 15 and Marisol Lopez that Samantha Miranda was being held against her will" by 16 McClarin, the Officers happened upon two men drinking whiskey in public, and 17 proceeded to question the men, arrest them, search for contraband, then take them 18 to the Precinct, and process them at the Precinct. Id. at *1. The court pointed out that 19 "[t]he time spent on these activities would have allowed ample time to obtain a 20 warrant" for entry into or search of McClarin's apartment. Id. 21 In addition, the court noted that important facts had remained -23-  1 unresolved before trial. Although the Officers had received information from Lopez 2 that Miranda was being held against her will, 3 [a]t McClarin's apartment, Miranda denied that she was being 4 held against her will. There was testimony that she had facial 5 injuries, but the officers did not seek medical treatment for her. 6 In sum, the evidence was sufficient to support a finding that 7 Officers Grieco and Ardolino and Sergeant Martinez did not 8 believe there was such an emergency, or that their belief was 9 unreasonable. 10 Id. at *2 (internal quotation marks omitted). 11 As to the Officers' motion for judgment as a matter of law on McClarin's 12 claims of malicious prosecution, the district court pointed out that it had "instructed 13 the jury that 'a defendant who is not a prosecutor participates in initiating a criminal 14 prosecution if he creates or gives the prosecutor information which he knows to be 15 false,' Trial Tr. at 1011." McClarin I, 2023 WL 5831059, at *2. It found that, at trial, 16 there was sufficient evidence from which the jury could 17 reasonably infer that Grieco assisted in planting evidence and 18 pressuring Miranda to write a false statement that McClarin had 19 kidnapped her and forced her to use illegal drugs. That same 20 inference defeats Defendants' arguments that there was 21 nevertheless probable cause for the prosecution, see Ricciuti v. 22 N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997) ("To hold that 23 police officers, having lawfully arrested a suspect, are then free to 24 fabricate false confessions at will, would make a mockery of the 25 notion that Americans enjoy the protection of due process of the 26 law and fundamental justice."), and that they are at least entitled -24-  1 to qualified immunity. See id. ("Qualified immunity is 2 unavailable where, as here, the action violates an accused's clearly 3 established constitutional rights, and no reasonably competent 4 police officer could believe otherwise."). 5 McClarin I, 2023 WL 5831059, at *2. 6 The court also rejected the contentions of Schumacher and Martinez that 7 there was insufficient evidence to hold them liable for malicious prosecution on the 8 failure-to-intervene theory. It found instead that there was sufficient evidence to 9 support a finding by the jury 10 that Miranda was coerced into signing a statement falsely 11 accusing McClarin of kidnapping and other crimes. There was, in 12 addition, sufficient evidence that Schumacher and Martinez knew 13 about the statement and failed to prevent its use in prosecuting 14 McClarin by informing the district attorney that it was false and 15 coerced. That evidence supports the jury's verdict. 16 Id. 17 Turning to the Officers' alternative motion for a new trial, the district 18 court found none of the proffered grounds for such relief persuasive. The court 19 stated that its instructions to the jury accurately reflected applicable law and thus did 20 not amount to "a miscarriage of justice" as required for a new trial to be justified. Id. 21 at *4. 22 The court also rejected the Officers' contention that it had erred in -25-  1 excluding the proffered recordings. It reprised the rationale given during the trial (set 2 out more fully in Part II.B. below), stating that defense counsel should have disclosed 3 that impeachment evidence to McClarin's attorneys prior to trial, and that "[t]rial by 4 ambush has long since fallen out of favor." Id. at *6. It also concluded that the jurors 5 heard sufficient testimony regarding the conversations captured on the recordings to 6 make it harmless that they did not hear the actual recordings. Id. at *7. 7 As to the Officers' contention that the awards of punitive damages were 8 unconscionably high, the district court noted, inter alia, that one factor in assessing 9 such damages is "'the degree of reprehensibility'" of a defendant's conduct. Id. at *8 10 (quoting BMW of North America, Inc. v. Gore, 517 U.S. 559, 575 (1996) ("degree of 11 reprehensibility" is "[p]erhaps the most important indicium of the reasonableness of 12 a punitive damages award")). Having noted in denying the Officers' motions for 13 judgment as a matter of law that the trial evidence was sufficient to support an 14 inference that Miranda had been "coerced" by Ardolino and Grieco to sign a 15 statement "falsely accusing McClarin of kidnapping and other crimes," McClarin I, 16 2023 WL 5831059, at *2, the district court concluded that the Officers' "conduct-- 17 particularly the falsification of evidence--is undoubtedly reprehensible enough to 18 support the awards," id. at *8. The court also found that the sizes of the punitive -26-  1 damages awards here, in comparison to the amounts of compensatory damages 2 awarded, fell within a reasonable range for cases of this type. See id. at *8-*9. 3 The district court denied McClarin's motion for reinstatement of his 4 Monell claim against the City, which the court had dismissed on summar