On Friday, March 13, the Court of Appeals for the Second Circuit heard oral argument in the case of Thomas Girbes-Pierce v. City of New York, et al., an excessive force case involving the unlawful use of pepper spray by an NYPD officer.

The Warshawsky Law Firm represents the plaintiff, who alleges that during a night on the town with some friends he was forcibly accosted by plain clothes police officers, who he believed were muggers, one of whom pepper-sprayed the plaintiff directly in the face. The case went to trial in October 2018 before Magistrate Judge James L. Cott of the Southern District of New York. After three days of trial, the the jury returned a verdict for the plaintiff on his excessive force claim, but awarded only $1 nominal damages. After the district court denied the plaintiff’s motion for a new trial on damages, the plaintiff appealed to the Second Circuit. The central issue on appeal is whether the plaintiff suffered an actual injury from the pepper spray, thereby entitling him to an award of compensatory damages as a matter of law.

In the 2010 case of Tracy v. Freshwater, the Second Circuit recognized that “[u]nquestionably, infliction of pepper spray on an arrestee has a variety of incapacitating and painful effects and, as such, its use constitutes a significant degree of force.” Nevertheless, the district court had ruled that the jury could have found that the plaintiff had suffered only a “de minimis” injury from the pepper spray, thus awarding him only nominal damages. This result is contrary to the undisputed evidence in the case – including testimony from two eyewitnesses and a police officer about how the pepper spray harmed the plaintiff – which demonstrated that the plaintiff suffered an actual injury from the pepper spray. Under established Second Circuit precedent, including the cases of Wheatley v. Beetar (1980) and Atkins v. New York City (1998), the plaintiff should have been awarded at least some compensatory damages. The Second Circuit panel that heard the appeal included Judge Debra Ann Livingston who authored the opinion in Tracy v. Freshwater. Despite Second Circuit precedent clearly acknowledging the harmful effects of pepper spray, the panel appeared reluctant to invade the province of the jury to award damages. Hopefully the Court of Appeals will do the right thing and reverse this miscarriage of justice. Steven M. Warshawsky argued for the plaintiff.