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THE 18 USC 1983 CAUSE OF ACTION AGAINST THE POLICE AND MUNICIPALITY WAS PROPERLY DISMISSED BECAUSE THE DOCTRINE OF REPONDEAT SUPERIOR DOES NOT APPLY AND THERE WAS NO EVIDENCE THE POLICE WERE ACTING PURSUANT TO A MUNICIPAL CUSTOM OR POLICY WHEN THEY ALLEGEDLY PUSHED PLAINTIFF TO THE GROUND, HANDCUFFED HER AND TASED HER; HOWEVER THE BATTERY CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the battery cause of action in this Civil Rights Law (18 USC 1983) case should not have been dismissed. The lawsuit stemmed from the police allegedly pushing plaintiff to the ground, striking her, handcuffing her and tasing her. The 18 USC 1983 cause of action was properly dismissed because plaintiff did not prove the police were acting pursuant to a municipal custom or policy. However, the battery cause of action should not have been dismissed:

However … a jury could rationally conclude that the defendants are liable for battery. “‘To recover damages for battery, a plaintiff must prove that there was bodily contact, made with intent, and offensive in nature'” … . “[A]n assault and battery cause of action may be based on contact during an unlawful arrest” … .

At trial, the plaintiff presented evidence from which the jury could rationally conclude that the detention was not privileged under Mental Hygiene Law § 9.41, and the trial evidence showed that the officers engaged in contact with the plaintiff during the allegedly unlawful detention. The trial evidence, viewed in the light most favorable to the plaintiff, was sufficient to allow the jury to rationally conclude that the two officers were acting within the scope of their official duties at the relevant time. Accordingly, the defendants were not entitled to dismissal of the cause of action alleging battery … . Mac v County of Suffolk, 2024 NY Slip Op 06330, Second Dept 12-18-24

Practice Point: A municipality cannot be held liable pursuant to 18 USC 1983 for the actions of police officers under a respondeat superior theory. The plaintiff must show the police were acting pursuant to a municipal custom or policy.

Practice Point: A municipality may be liable for battery committed by police officers acting within the scope of their employment.

 

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