Full opinion text
MEMORANDUM OPINION AND ORDER HAIGHT, Senior District Judge. Following a jury verdict rejecting their claims, plaintiffs move for a new trial pursuant to Rule 59(a), Fed.R.Civ.P. I.Procedural History This action arises out of an altercation outside Yankee Stadium on April 30, 1989 between plaintiffs Alfred Ricciuti (“Alfred”) and Daniel Ricciuti (“Daniel”), and defendant Harlice Watson, an off-duty New York City Corrections Officer. The incident resulted in the arrest of plaintiffs. Following the disposition of criminal charges against plaintiffs, they asserted claims under 42 U.S.C. § 1983 and state law against Watson, several police officers, and (invoking Monell principles) the City of New York. This Court granted defendants’ motion to dismiss the complaint under Rule 12(b)(6) for failure to state a claim. The Court of Appeals reversed. Ricciuti v. N.Y.C. Transit Authority, 941 F.2d 119 (1991) (“Ricciuti I”). Following discovery, this Court granted defendants’ motion for summary judgment under Rule 56. The Court of Appeals affirmed in part and reversed in part. Ricciuti v. N.Y.C. Transit Authority, 124 F.3d 123 (2d Cir.1997) (“Ricciuti II”). Familiarity with both opinions is assumed. Trial of the surviving claims began before a jury on April 14,1998 and concluded on April 29, when the jury returned a completed Special Verdict form. The defendants at trial were Watson, Transit Police Officer Henry Lopez, Transit Police Lieutenant Robert L. Wheeler, and Transit Police Captain Francis O’Hare. In summarizing the plaintiffs’ claims against these four individual defendants, I will follow the order adopted for the Special Verdict submitted to the jury. ■ Those claims were: 1. Daniel’s claim against Watson for false arrest. 2. Daniel’s claims against Lopez and Wheeler for failing to intercede when Watson arrested Daniel. 3. Alfred’s and Daniel’s claims against Wheeler for malicious prosecution. 4. Alfred’s and Daniel’s claims against Lopez, Wheeler, and O’Hare for violating their constitutional right to a fair trial. 5. ■ Alfred’s and Daniel’s claims against Lopez, Wheeler, O’Hare, and Watson for conspiring to deprive him of their constitutional rights. 6A. Alfred’s claims against Watson for assault and battery. 6B. Daniel’s claim against Lopez for battery. 6C. Alfred’s claim against Wheeler for libel. These claims were set forth in the Liability section of the Special Verdict, comprising its first four pages. A copy of that section of the Special Verdict as completed by the jury appears as Appendix A to this Opinion. The jury found for the defendant or defendants concerned on each of plaintiffs’ claims. Plaintiffs timely moved for a new trial under Rule 59(a). II. Standards for Granting or Denying a New Trial Rule 59(a) provides: “A new trial may be granted ... for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States.” The Second Circuit has had several recent occasions to consider the standards for granting or denying a motion for a new trial under Rule 59(a). See, e.g., DLC Management Corp. v. Town of Hyde Park, 163 F.3d 124, 133-34 (2d Cir.1998): As a general matter, a motion for a new trial should be granted when, in the opinion of the district court, the jury has reached a seriously erroneous result or the verdict is a miscarriage of justice. A new trial may be granted, therefore, when the jury’s verdict is against the weight of the evidence.... The standards governing a district court’s consideration of a Rule 59 motion for a new trial on the grounds that the verdict was against the weight of the evidence differ in two significant ways from the standards governing a Rule 50 motion for judgment as a matter of law. Unlike judgments as a matter of law, a new trial may be granted even if there is substantial evidence supporting the jury’s verdict. Moreover, a trial judge is free to weigh the evidence himself, and need not view it in the light most favorable to the verdict winner. . A court considering a Rule 59 motion for a new trial must bear in mind, however, that the court should only grant such a motion when the jury’s verdict is egregious. Accordingly, a court should rarely disturb a jury’s evaluation of a witness’s credibility, (citations and internal quotation marks omitted). The cautionary note struck at the end of this discussion resonates with particular strength in the case at bar because, as we shall see, this is a quintessential “he said, he said” case, where the jury’s resolution of the decisive facts necessarily depended upon their evaluation of which witnesses to believe. The Second Circuit derives from Tennant v. Peoria & Pakin Union Ry. Co., 321 U.S. 29, 35, 64 S.Ct. 409, 88 L.Ed. 520 (1944), the principle that “[a] jury’s credibility assessments are entitled to deference.” United States v. Landau, 155 F.3d 93, 105 (2d Cir.1998). See also Metromedia Co. v. Fugazy, 983 F.2d 350, 363 (2d Cir.1992) (“Where the resolution of issues depended on assessment of the credibility of the witnesses, it is proper for the court to refrain from setting aside the verdict and granting a new trial.”); Dunlap-McCuller v. Riese Organization, 980 F.2d 153, 158 (2d Cir.1992) (while' on a motion for a new trial in an employment discrimination case the trial court may evaluate plaintiffs credibility, “we caution that the jury is empowered and capable of evaluating a witness’s credibility, and this evaluation should rarely be disturbed.”); Sorlucco v. New York City Police Dept., 971 F.2d 864, 875 (2d Cir.1992) (“The veracity of Sorlucco’s statement concerning her signing of the blank form, and her knowledge (or lack thereof) of its effect on withdrawing the criminal charges against Mielko was a matter of credibility for the jury to resolve.”); Wake v. Orange County Sheriff’s Office, 844 F.2d 951, 955 (2d Cir.1988) (“Since the jury was the trier of fact, its credibility assessments were entitled to deference, and the district judge properly refrained from setting aside the verdict and granting a new trial”) (citing Ten-nant ). Where it appears that the district court failed to give the jury’s credibility evaluations sufficient deference, an order granting a new trial will be reversed. Sorlucco, 971 F.2d at 875, is illustrative: All of the conflicting versions, if they were conflicting, were before the jury. The jurors heard both the testimony of Sorlucco °on the point and that of Dr. Archibald, which tended to contradict it. They were free to settle upon which witness they believed. Under the circumstances, we think that the trial court overstepped its bounds and usurped the jury’s function of judging credibility. However, the fact that a jury’s verdict depends in part upon its evaluation of a witness’s credibility does not preclude the trial judge from granting a new trial under Rule 59(a). The Second Circuit made that plain in Landau, 155 F.3d at 104-106, a tax assessment case where the jury found the defendant in question, one Unger, Hable. The jury clearly disbelieved Unger’s self-exculpatory testimony. “Since the only evidence Unger presented on his own behalf to establish that he did not exercise significant control was in fact was his own testimony, in finding against Unger, the jury must have rejected Un-ger’s testimony.” 155 F.3d at 105 n. 4. Unger moved for a new trial. The trial judge disregarded that specific request, set the jury verdict aside, and sua sponte granted Unger judgment as a matter of law (“JMOL”). The court of appeals reversed on the ground that the trial judge had disregarded Rule 50(b)’s stringent standards governing a post-trial JMOL. Unger argued on appeal that if the court of appeals reversed the JMOL in his favor, it should remand the case to the district court with instructions to grant a new trial. The court of appeals, choosing instead to “remand the case to the district court to determine whether Unger’s motion for a new trial should be granted,” 155 F.3d at 106, undertook to guide the district court on the standards it should apply, in language that I will quote at some length: [T]he fact that the jury’s verdict was, as the Government contends, based in part on its evaluation of Unger’s credibility does not preclude the district judge’s grant of a new trial. It is inherent in the proposition that the district judge may weigh the evidence that the judge will consider the credibility of witnesses .... This is not to say that a district judge may freely substitute his or her assessment of the credibility of witnesses for that of the jury simply because the judge disagrees with the jury. A jury’s credibility assessments are entitled to deference, and we have stated that where the resolution of the issues depended on assessment of the credibility of witnesses, it is proper for the court to refrain from setting aside the verdict and granting a new trial. However, these principles of deference to the jury do not override the trial judge’s duty to see that there is no miscarriage of justice. If convinced that there has been a miscarriage of justice then it is the trial judge’s duty to set the verdict aside. 155 F.3d at 104-05 (citations and internal quotation marks omitted). After describing Sorlucco, 971 F.2d 864, where as noted a Second Circuit panel reversed the district court’s grant of a new trial, the Landau court continued: Sorlucco illustrates the tension that exists when granting a motion for a new trial between two conflicting principles: the parties’ Seventh Amendment right to a trial by jury and the power of the district court, also necessary to our jury system, to set aside a seriously erroneous verdict based on the weight of the evidence. This tension is most acute where, as in this case and in Sorlucco, the result may turn in large part on the credibility of a single witness. While this makes the trial court’s task in ruling on a new trial motion more difficult, it does not preclude the possibility that the motion may be granted. In Sorlucco, the Court of Appeals found that the trial judge had disagreed with the jury on the credibility of a key witness but did not explain how that difference of opinion led to a miscarriage of justice. We do not read Sorlucco to mean that a trial judge can never substitute its view of the evidence for that of the jury, provided the judge is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice. Id. at 105-06 (footnotes, citation and internal quotation marks omitted). With all respect, Landau’s metronomic discussion more clearly describes the tension between conflicting principles than it furnishes the criteria by which trial judges should resolve that tension. Trial judges are told that they must have faith in jurors’ assessments of witnesses’ credibility, but not too much faith. Such commandments mig’ht puzzle even theologians, but trial judges must make of them what they can. Trial judges are told that they must not substitute their evaluation of credibility for that of the jury, except that they must do so if a verdict based on credibility is a “miscarriage of justice,” which trial judges are repeatedly cautioned they should find only very rarely (although if the jury believed the wrong witnesses it is hard to see how their verdict could be characterized as anything else). From this maze of conflicting principles and less than precise appellate directions, I fashion tbe following guidelines: 1. A trial judge should be least inclined to disturb a jury’s verdict, based entirely or primarily upon witness credibility, where the conflicting accounts of the witnesses are equally plausible (or implausible), and there is no independent evidence in the trial record clearly demonstrating that, if a miscarriage of justice is to be avoided, one party’s witnesses should not be believed. In those circumstances, the trial judge should accept the jury’s findings, regardless of any doubts of his own in the matter. 2. Conversely, a trial judge should be most inclined to disturb a jury verdict, based entirely or primarily upon witness credibility, where one conflicting account is so inherently implausible as to tax credulity, or there is independent evidence in the trial record clearly demonstrating that to believe one party’s witnesses over the other’s would lead to a miscarriage of justice. These guidelines are faithful to the core principle the Supreme Court declared in Tennant, 321 U.S. at 35, 64 S.Ct. 409, that “[i]t is the jury, not the court, which is the fact-finding body,” a principle the Second Circuit has consistently applied in witness-credibility cases and in broader contexts as well. See, e.g., Bevevino v. Saydjari, 574 F.2d 676, 685 (2d Cir.1978) (affirming denial of a new trial; “the district court was not required to grant a new trial simply because he disagreed with the jury.”); Compton v. Luckenbach Overseas Corp., 425 F.2d 1130 (2d Cir.1970). In Compton, the district judge denied defendant’s motion for a new trial even though he had characterized the evidence against plaintiff as “overwhelming” and remarked that “as the trier of the fact he would have decided the case differently,” 425 F.2d at 1133. Affirming, the Second Circuit said: The trial judge, exercising a mature judicial discretion, should view the verdict in the overall setting of the trial; consider the character of the evidence and the complexity or simplicity of the legal principles which the jury was bound to apply to the facts; and abstain from interfering with the verdict unless it is quite clear that the jury has reached a seriously erroneous result. The judge’s duty is essentially to see that there is no miscarriage of justice. If convinced that there has been then it is his duty to set the verdict aside; otherwise not. Id. I will apply the principles of the cases discussed in this Part to the facts and circumstances of the case at bar. III. The Evidence Adduced at Trial and the Jury’s Responses to the Special Verdict In this Part of the Opinion, I will discuss the plaintiffs’ claims in a different order than that appearing in the Special Verdict, so that the chronology of events may be presented with maximum clarity. The pertinent events took place, for the most part, at two locations: first, on a Bronx street in the vicinity of Yankee Stadium; and subsequently at a Transit Police district station underneath the subway station serving that area. A. Alfred’s Claims Against Watson for Assault and Battery 1. The Trial Evidence This case began with an altercation between Alfred Ricciuti, Daniel Ricciuti, and Harlise Watson which occurred during the afternoon of April 30, 1989, on 161st Street between River and Gerard Streets in the Bronx. The parties agree that while Alfred and Daniel Ricciuti and Watson were walking on the 161st Street sidewalk, Alfred accidentally bumped into Watson; that Alfred and Watson exchanged punches; that one of Alfred’s blows broke Watson’s eyeglasses and cut him under his right eye; that during the altercation Watson’s service revolver fell to the ground; and that Transit Officer Henry Lopez, who did not witness these events, thereafter arrested Alfred Ricciuti on Watson’s complaint. All other pertinent details are in dispute. The trial testimony of Alfred and Daniel gave one account of the incident. Watson’s testimony, corroborated in certain aspects by that of Lopez, gave a fundamentally different account. These conflicting accounts cannot be reconciled. The jury accordingly was required to choose whether to believe the Ricciutis on the one hand, or Watson on the other. If the jury believed the Ricciutis, Watson assaulted Alfred. If the jury believed Watson, he did not. (a) The Account Given by the Ricciutis Alfred and Daniel testified that during the afternoon of April 30, 1989 they had attended an afternoon baseball game at Yankee Stadium. Alfred is Daniel’s uncle. He was 27 years old at the time of the incident in suit. Daniel was 22. The tickets had been given to the Ricciutis by a friend, and included passes into the Yankee Stadium Club, a limited access facility where refreshments may be obtained. The Ricciutis drove to the Stadium from their homes in New Jersey. They parked their car in a nearby lot and were in their seats before the game began. They twice obtained food from Stadium vendors during the game. At the end of the game the Ricciutis went to the Stadium Club, where they each drank one beer. They testified that these were the only alcoholic beverages they consumed during the afternoon. The Ricciutis left the Stadium and were walking away from it on 161st Street, on their way to the parking lot. They were conversing and not paying close attention to other pedestrians on the sidewalk. Suddenly and unexpectedly, Alfred collided with Watson, who was walking with his fiancee in the opposite direction. Neither Alfred nor Daniel had noticed Watson before this contact. Watson, who was 27 years old at the time, is a relatively large man. He is taller, broader, and heavier than either Ricciuti. Alfred estimated Watson’s weight as 220 pounds. Alfred testified that as he and Daniel were walking and talking, “obviously I was not- looking in front of me, and I accidentally walked right into the chest of Mr. Watson,” who Alfred described as “very big.” During the trial, plaintiffs’ counsel had Watson and Alfred stand next to each other in front of the jury, in order to demonstrate their dramatic difference in size. The Riceiutis testified that neither they nor Watson said anything at the moment of this accidental contact. The Riceiutis resumed walking away from the Stadium and Watson toward it (the Riceiutis did not recall that Watson was accompanied by a • woman). Suddenly, Alfred testified, “Watson came back around to the front of me and stopped me from walking. He got right in my path.” Watson said to Alfred: “What are you, crazy? What are you going to do about this?” Alfred assumed Watson was referring to the bumping. Alfred said to Watson: “I am sorry, let’s just shake hands and we will go on our way,” and held out a placatory hand. Watson slammed Alfred’s hand down with his on, and repeated: “What are you going to do about that?” Alfred again extended his hand and asked to shake hands. At that point, according to the testimony of both Riceiutis, Watson savagely assaulted Alfred. Watson shoved Alfred back several feet and then came at him with his hand upraised to attack. Alfred, acting in self-defense, punched Watson on the right side of his face. Alfred’s one swing was followed by a barrage from Watson. Watson hit Alfred about 15 times, knocked Alfred down, bent down, grabbed him by the collar, and continued to hit Alfred. At this point Watson’s service revolver fell out of his shoulder holster onto the pavement. Watson picked up his gun and pointed it at Alfred, within a foot of his face. Watson put his gun away, reached down and grabbed Alfred again by the collar, hit him 15 or 20 more times, then moved several feet away, pointed his gun again at Alfred, who was still lying on the ground, and left the area. Alfred said that Watson hit him “all over the upper part of my body, my face, my shoulders, my chest.” Watson left Alfred lying on the ground; Alfred described himself as “very dizzy, I was in a lot of pain, bleeding mainly in my mouth,” having “trouble walking because of the beating I had just received.” Daniel’s testimony gave an identical account of how the altercation started, and the magnitude of the beating Watson inflicted upon Alfred. After Alfred struck Watson, Watson “just unloaded with devastating blow after blow after blow,” landing “15 or 20 blows” on Alfred with a closed fist; Alfred fell; Watson punched Alfred “probably another good ten times” while Alfred was on the ground; Watson’s gun fell out of his jacket and Watson pointed it at Alfred; Watson put the gun away, hauled Alfred to his feet, and continued to land “devastating punches” on Alfred, “maybe another five punches before A1 went down again.” After Watson left, Daniel “helped [Alfred] off the ground and walked him across the street.” Alfred “was beat up very badly. He couldn’t walk on his own. I basically carried him across the street. I put his arm around my head and walked him as far as I could to the bank and left him there. Just really couldn’t walk. He was very dizzy.” (b) The Account Given by Watson Watson testified that as he and his fiancee were walking on the 161st Street sidewalk toward Yankee Stadium, he noticed “two gentlemen walking backwards coming towards us and they bumped into the two of us.” Watson, with whom Alfred had collided, asked Alfred in substance “what was wrong, what was the problem.” Alfred responded: “I am not scared of you, nigger, let me go.” That epithet angered Watson. Alfred then punched Watson “in the glasses, he cut my face during that period.” This was the first blow of the altercation; Watson testified that he punched Alfred “because he punched me.” Alfred “continued to punch me,” maybe twice more; during the entire incident, Watson hit Alfred “maybe two or three” times. At one point Alfred fell; Watson testified it was because Alfred was drunk. When Watson’s gun fell to the ground, Alfred was on the ground. Watson testified: “The gun fell, he was on the ground, one of them said, ‘the nigger got a fucking gun.’ He helped his buddy up and they ran.” Watson did not pursue them because “I was dazed, I was cut. I was hurt. I was in no condition to follow them up the block.” Watson and his fiancee returned to a neighborhood bakery they had visited earlier that afternoon; Watson described his purpose in doing so: “Maybe I could clean my wound, get something to use as a compress, call the police or whatever I was going to do.” Watson then observed Transit Police Officer Lopez, in uniform, walking in the area. Watspn told Lopez that he had been assaulted, pointed out the Ricciutis to Lopez, and Lopez arrested Alfred Ricciuti. Lopez’s trial testimony implicitly corroborated Watson’s account in one respect. While Lopez did not witness the beginning of the altercation, he testified that when Watson pointed the Ricciutis out to him, “I heard Alfred Ricciuti make a statement.” According to Lopez, Alfred said: “You fucking nigger, I am going to kick your fucking ass.” When Watson identified Alfred Ricciuti as the one who had struck him, Lopez placed Alfred under arrest for assault, asked him to place his hands up against a wall, and handcuffed him. During that time, Lopez testified, Alfred was “yelling vulgarities”; Alfred’s statements “were more in the form of vulgarities and racial slurs,” those statements being directed “towards Harlise Watson mostly.” The racial epithets Lopez ascribed to Alfred Ricciuti are consistent with the epithets Watson testified Alfred directed toward him when their altercation began. Counsel for plaintiffs sought to cast doubt on Lopez’s testimony on the point by cross-examining him by means of references to Lopez’s prior deposition and the contemporaneous entries in Lopez’s notebook. The Ricciutis’ trial testimony was that at no time did Alfred use any racial epithets, either when his altercation with Watson began, during Alfred’s arrest by Lopez, or later in the station house to which Lopez brought him. As we will see, the hotly disputed issue of whether Alfred Ricciuti used racial epithets at various times runs like a leitmotif through this case. The resolution of that issue depended principally upon the jury’s evaluation of the credibility of the several witnesses. 2. The Jury Verdict Question 6A in the Liability section of the Special Verdict Form asked the jury if plaintiff Alfred Ricciuti had proved by a preponderance of the evidence that defendant Harlise Watson (i) assaulted him; or (ii) battered him. The jury answered “no” to both. 3. Discussion The reader will have observed that the Ricciutis’ and Watson’s accounts are diametrically opposed to each other. Alfred Ricciuti acknowledges that he struck Watson, but only in self-defense, and that Watson assaulted him. Watson acknowledges that he struck Alfred, but only in self-defense, and that Alfred assaulted him. On the subject of self-defense, I instructed the jury: Defendant Watson has argued that he acted in self-defense. To prevail on his battery and assault claims, plaintiff Alfred Ricciuti must show by a preponderance of evidence that defendant Watson’s actions were not justified by self-defense. Defendant Watson acted in self-defense if, one, he was under a danger or apparent danger of bodily harm at the time of the incident and, two, he used no more force than necessary to reasonably protect himself from such danger. If you find that plaintiff Alfred Ricciuti has failed to show that the defendant did not, in fact, act in self-defense, you must find that there was no battery or assault of Alfred Ricciuti. 4/27 Tr. 1244-1245. To this charge no objection was taken; and it is apparent from the jury’s verdict that they believed Watson’s account of the altercation and rejected that of the Ricciutis. The case furnishes a classically uncomplicated example of trial jurors resolving disputed factual issues on the basis of their assessment of the credibility of witnesses. Nonetheless, plaintiffs contend that this is one of those rare cases where the trial judge, independently weighing the evidence under Rule 59(a), should disregard the jury’s evaluations of credibility and arrive at a contrary conclusion. It is said in support of that contention that there is no reason to disbelieve the Ricciutis, while Watson’s account should be rejected because the record exposes him as a perjurer. After careful consideration, I disagree on both counts. As noted, Watson was much larger (and presumably stronger) than Alfred Ricciuti. Both Alfred and Daniel testified that Watson struck Alfred between 40 and 50 times with closed fists and great force (“devastating” in Daniel’s phrase), landing his blows upon Alfred’s upper body and unprotected face, thereby rendering Alfred bloody, in pain, dizzy and able to stand only with assistance. But it seems remarkable, if one credits that testimony, that Alfred was not even more seriously injured, having been subjected to so prolonged a beating at the hands of so much larger a man — a difference in size which plaintiffs’ counsel dramatized by arranging a lineup in front of the jury. If plaintiffs’ description of the prolonged and violent beating Watson gave Alfred is true, it is remarkable that Alfred was not lifted off the sidewalk and taken to the nearest hospital trauma unit. In point of fact, however, following his arrest by Lopez, Alfred walked a number of blocks without assistance to the Transit Police station house underneath the 161st Street subway station. While defendant Wheeler, the officer in charge of the Transit Police station house, summoned an emergency medical services ambulance crew to examine Alfred at 6:30 p.m. on April 30, the EMS personnel who responded found it necessary to do no more than treat Alfred “for a laceration of the right ring finger and contusion on forehead. Injuries did not require hospitalization.” That is a correct paraphrase of the Transit Police “Medical Treatment of Prisoner” form, defendants’ Ex. P in evidence, which states in part: “Examination by attendant, minor edema to forehead, minor laceration to left ring finger, treated at scene. RMA” (which I take to mean “Refused Medical Assistance”). Alfred Ricciuti acknowledged that he signed that form, 4/17 Tr. 80-83, but I would not allow defendants’ counsel to publish the form to the jury as a statement binding upon Alfred Ricciuti. Id. Tr. 84. However, in this Rule 59(a) context, it is appropriate to note that the form is consistent with Wheeler’s report and with his testimony concerning the extent of Alfred’s injuries. It is common ground that Alfred did not have to be treated at a hospital, either that evening or the following morning; in that regard he may be contrasted with Watson, who was taken to a hospital twice for treatment of the cut under his eye. During the first hospital visit, the emergency room staff placed bandages upon the cut, but when the bleeding continued, Watson had to return to the hospital where the cut was stitched closed. What all this comes down to is a basis for concluding that Alfred and Daniel Ric-ciuti materially exaggerated the extent to which Watson beat Alfred. The defendants make that point in their brief on the present motion. Plaintiffs argue in their reply brief that this is a false issue because Alfred charged Watson with assaulting him in general terms, not committing an assault in any particular degree as defined by the Penal Law. But that reply misses the point. Plaintiffs’ material exaggerations of Watson’s striking of Alfred, if found by the jury, go to the credibility of Alfred and Daniel generally. The same would be true if the jury thought plaintiffs had minimized their alcoholic consumption. The jury was given the traditional instruction with respect to the effect they could give to a witness’s false statement. I may reflect on such considerations in performing my evaluation of the trial evidence within the context of this Rule 59(a) motion. Plaintiffs also urges the Court on this motion to conclude that Watson, Lopez, Wheeler, and O’Hare knowingly created false reports at the time of the incident, or gave false testimony at the trial, or both. Plaintiffs’ contention, in short, is that the defendants obtained verdicts in their favor by perjury. I am asked to order a new trial on that basis. In the context of Alfred’s claim that Watson assaulted and battered him, the alleged perjury that I must consider is that of Watson. That follows from plaintiffs’ contention that “[t]he jury’s verdict that Alfred Ricciuti did not prove by a preponderance of the evidence that he was assaulted and battered by Corrections Officer Watson was against the weight of the evidence and could only have been based on perjured testimony by Office Watson.” Before turning to plaintiffs’ particular allegations of perjury by Watson, I will consider the burden of proof which plaintiffs must meet to sustain the charge. What follows will apply not only to the alleged perjury of Watson, but of the other defendants as well. In United States v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993), the Supreme Court said that a witness violates the federal criminal perjury statute, 18 U.S.C. § 1621, if a witness testifying under oath “gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.” While in Dunnigan the Court applied that definition to a calculation under the United States Sentencing Guidelines, it observed that “[t]his federal definition of perjury by a witness has remained unchanged in its material respects for over a century,” id., and it is the definition that I will use for the present purposes. In criminal prosecutions for perjury, the government bears the traditional burden of proving guilt beyond a reasonable doubt. The Second Circuit rule is that in the context of a civil action, perjury must be demonstrated by clear and convincing evidence. In Barr Rubber Products Company v. Sun Rubber Company, 425 F.2d 1114 (2d Cir.1970), a bench trial involving the validity of patents, the Second Circuit reversed as unsupported by the record the district court’s finding of an intentional fabrication of evidence. The Second Circuit began its analysis by noting: Generally, a civil plaintiff must prove his affirmative case by no more than a preponderance of the evidence. Ordinarily this is true even where a criminal act is charged as part of a civil case. 425 F.2d at 1120 (citations omitted). Having said that, the court of appeals continued: However, there is ample authority of long standing that to substantiate charges of fraud or of undue influence, at least in actions seeking the recovery of monies paid or the rescission or cancellation of contracts, a litigant must present clear and convincing proof. When a person is charged with all the elements which constitute a heinous crime, although it be only on a civil issue, it shocks the judicial mind to refuse to give him the benefit of the usual presumption of innocence unless the adverse proofs are so far satisfactory as to be convincing.... Logic and reason demand that no lower standard of proof be applied in assessing a charge of perjury.... Id. at 1120-1121 (citations, footnote, and internal quotations marks omitted). The Second Circuit adopted the same analysis in Penthouse International, Ltd. v. Dominion Federal Savings and Loan Association, 855 F.2d 963 (2d Cir.1988), in which it specifically reversed the district court’s finding of perjury at the end of a bench trial. The court of appeals said: With regard to the perjury finding, we are somewhat surprised by its presence in the court’s decision. If the court viewed Gorelick’s testimony as incredible, that is its prerogative as the trier of fact in a non-jury case, but unless perjury is at issue in a case, such a finding is not necessary once the trier of facts finds the witnesses’ testimony incredible. The perjury finding here, however, was not only unnecessary but also was erroneous since it was not based upon clear and convincing proof. 855 F.2d at 987 (citing Barr). In ICN Pharmaceuticals, Inc. v. Khan, 2 F.3d 484 (2d Cir.1993), reviewing the propriety of a preliminary injunction where the district court said that he found a party’s testimony “incredible, false and willfully false,” the Second Circuit explicitly noted that a finding as to willfully false testimony (as distinguished from an ordinary credibility determination in the course of resolving a disputed issue of fact) must be made in stated accordance with the “clear and convincing proof’ standard. 2 F.3d at 493 (citing Penthouse and Bair). I think that this unbroken line of Second Circuit authority in civil trials applies to the trial judge’s review of the evidence in the context of a motion for a new trial under Rule 59(a). While the jury in the case at bar was instructed to resolve the factual disputes under the preponderance standard, I am asked to grant plaintiffs a new trial on the ground that police officers perjured themselves. Perjury is a “heinous crime,” surely not the less so if committed by a servant of the public such as a police officer; accordingly, if plaintiffs are to obtain a new trial on the ground that a defendant committed perjury, they must demonstrate that perjury by clear and convincing proof. To revert to the testimony of Watson with respect to his altercation with Alfred Ricciuti, plaintiffs do not make that showing. Plaintiffs begin their analysis of Watson’s alleged perjury by summarizing plaintiffs’ trial testimony about the altercation. As noted, plaintiffs’ account of those events differs from that of Watson, but that is insufficient to demonstrate that Watson committed perjury. See Bruneau v. South Kortright Central School, 962 F.Supp. 301, 304 (N.D.N.Y.1997): Furthermore, the plaintiff does not raise any evidence to establish that the student witnesses did actually testify falsely. In fact, the only thing which Bruneau can rely upon to support her contention is that she presented an entirely different version of the events which allegedly occurred at the School. Fact finding is, of course, the classic function of a jury. The jurors were presented with two opposing viewpoints and had within their powers of perception and reasoning the ability to weigh the testimony and determine the credibility of all of the witnesses, including the children who testified. It would be improper for this Court to usurp the jury’s function of judging credibility, (citations and internal quotation marks omitted). See also Williams v. City of Newburgh, 830 F.Supp. 770, 774 (S.D.N.Y.1993) (Freeh, J.): Williams has also failed to present evidence that any witness lied or that the evidence presented was tainted in any way. While defendants’ witnesses disagreed with Williams’ version of events and interpretation of the parties’ agreement, the existence of that disagreement does not necessarily mean that any witness perjured him or herself. Absent some other proof of the alleged lies, this argument also does not provide a basis for setting aside the jury’s verdict. In the case at bar, plaintiffs profess to find evidence of Watson’s perjury in prior statements that he made concerning the incident. Specifically, on May 1, 1989, the day after the incident, Watson appeared before an Assistant District Attorney and signed a complaint against plaintiffs. On May 8, 1989, Watson submitted a written report about the incident to his employer, the Department of Corrections. On September 10, 1993, Watson gave a pre-trial deposition. At the trial, plaintiffs’ counsel confronted Watson with the complaint and his report to the Department of Corrections, and read the text of those documents into the trial record. Counsel also quoted at length from Watson’s deposition. Plaintiff perceives in these earlier declarations material discrepancies between them and Watson’s trial testimony. Indeed, during summation plaintiffs’ counsel directed the jury’s attention to the contents of those prior statements as support for the proposition that “Watson’s testimony is completely incredible.” 4/27 at Tr. 1169 (an assertion that counsel followed immediately with references to Watson’s deposition testimony and the contents of the criminal complaint and the report to the Department of Corrections). It is true that there are some differences between Watson’s trial testimony and his description of the incident in the prior declarations. Sometimes the difference is one of omission, that is to say, a failure to include in an earlier statement a detail testified to at trial. For example, in his statement to the Department of Corrections, Watson described how Alfred Ricciuti struck him, but did not state that Watson struck Alfred. Other discrepancies constitute a difference between the accounts. For example, during his trial testimony Watson denied that he had knocked Alfred down, ascribing Alfred’s fall to the fact that he was drunk. But at his deposition, Watson acknowledged having knocked Alfred down. While there are other differences or discrepancies between Watson’s accounts that plaintiffs argued to the jury and reiterate on this motion, I am unable to find in these discrepancies, perceived or real, clear and convincing proof that Watson gave perjured testimony at the trial. On the contrary: were I to grant plaintiffs a new trial based upon my conclusion that Watson’s trial testimony was perjurious, I would commit that reversible error identified by the Second Circuit in Sorlucco v. New York City Police Department, 971 F.2d at 864-75, where the district court granted the defendant’s motion for a new trial “on the grounds that Sorlucco likely perjured herself at trial,” a ruling the court of appeals condemned as an abuse of discretion: This is not a case where contradictory evidence subsequently comes to light revealing a perjury that would warrant a new trial. All of the conflicting versions, if they were conflicting, were before the jury. The jurors heard both the testimony of Sorlucco on the point and that Dr. Archibald, which tended to contradict it. They were free to settle upon which witness they believed. Under the circumstances, we think that the trial court overstepped its bounds and usurped the jury’s function of judging credibility. So in the case at bar, “all of the conflicting versions,” derived from the trial testimony of plaintiffs and Watson, as well as from the accounts given by Watson at various earlier times, were before the jury and vigorously argued by counsel. Plaintiffs seek to distinguish Sorlucco on the ground that it did not involve any inconsistent factual statements by a party. That difference between Sorlucco and the case at bar may be acknowledged; but the effect vel non of a party-witness’s prior declarations upon the credibility of his trial testimony traditionally falls within the province of the jury, under appropriate instructions which I gave in this case. Conceptually at least, I would not be bound by the jiffy’s decision to believe Watson rather than the plaintiffs on this aspect of the case, if plaintiffs had demonstrated by clear and convincing evidence that Watson’s testimony was perjurious. But plaintiffs have not sustained that burden. It follows that on that aspect of the case relating to Alfred Ricciuti’s claims against Watson for assault and battery, the jury was presented with two irreconcilable accounts, neither of which was inherently implausible. The jury resolved the decisive issues by evaluating the witnesses’ credibility. I do not regard the jury’s resolution of that claim as seriously erroneous, or resulting in a miscarriage of justice. I will not interfere with the jury’s assessment of credibility because plaintiffs have not shown by clear and convincing proof that defendants obtained the verdict in their favor by means of perjured testimony. B. Daniel’s Claim Against Lopez for Battery It is common ground that Transit Officer Lopez arrested Alfred Ricciuti on the oral complaint of Watson. Daniel Ric-cutti, who had gone to get the car but observed his uncle being arrested, returned and protested that Lopez was arresting the wrong man. Lopez, persisting in his arrest of Alfred, said he was taking Alfred to the 161st Street station house with Watson, and that Daniel could accompany them if he wished. Daniel followed along behind. Daniel’s claim against Lopez for battery arises out of the Ricciutis’ statements that as the four individuals were walking toward the station house, Lopez suddenly kicked his foot backwards and struck Daniel on the knee. Lopez denies having done so. The conflicting accounts on this very narrow issue were placed before the jury, which was asked in Question 6B of the Special Verdict Form: “Has plaintiff Daniel Ricciuti proved by a preponderance of the evidence that defendant Henry Lopez battered him?” The jury answered “no,” indicating by that response that they believed Lopez and disbelieved the plaintiffs. Plaintiffs challenge the jury’s verdict on this claim as against the weight of the evidence. I think that the issue turns entirely upon the jury’s evaluation of the witnesses’ credibility, and in light of the authorities discussed supra, I decline to disturb the jury’s assessment. I am not persuaded that the jury arrived at a seriously erroneous result or that its verdict is a miscarriage of justice. Accordingly I will not order a new trial on Daniel Rieciu-ti’s claim against Lopez for battery. C. Daniel’s Claim Against Watson for Unlawful Arrest 1. The Trial Evidence It is common ground that Daniel, following Lopez, Alfred (now in Lopez’s custody), and Watson, arrived at the station house shortly after they did. It is also common ground that Daniel was then arrested. The parties differed about who made that arrest. (a) The Account Given by the Ricciutis Daniel and Alfred both testified that after entering the station house, Lopez brought Alfred to the booking desk, presided over by defendant Robert L. Wheeler, then a Transit Police lieutenant. Watson stood at the desk to Alfred’s right. Daniel stood against the wall. Daniel testified that Watson, Lopez, and Wheeler were having a discussion, but Daniel could not hear what they said. He could hear Alfred continuing to insist that he wished to press charges against Watson. Daniel described what next occurred as follows: A little, maybe five minutes after they had their conversation, Mr. Watson proceeded to turn around and look at me, looked right at me, and took me and spun me and threw me into this wall right here, and I • asked him what he thought he was doing, and he told me I was being put under arrest, and I asked Mr. Watson, for what, and Mr. Watson said for assault, and I said assault? I never committed a crime in my life, and Mr. Watson replied that’s too fucking bad. 4/14 Tr. 203. Watson handcuffed Daniel and then “waited for Officer Lopez to come and take me into the cell,” id., which Lopez did. Lopez followed through on the arrests of both Alfred and Daniel, including conveying them to Central Booking; Watson, not an officer of the Transit Police, could not perform those functions. Alfred’s testimony agreed with Daniel’s account of his arrest. (b) The Account Given by the Defendants In their trial testimony, Watson, Lopez, and Wheeler all denied that Watson had arrested Daniel. According to their account, Lopez arrested Daniel on the order of Wheeler, after Watson identified Daniel as a participant in Alfred’s assault upon Watson. 2. The Jury Verdict Faced with these conflicting accounts, the jury had to decide whether Watson arrested Daniel (as Daniel contended), and, if so, whether Watson had probable cause for the arrest (which Daniel denied). These issues were submitted to the jury in Questions 1A, IB, and 1C of the Special Verdict Form. Question 1A asked if Daniel had proved by a preponderance of the evidence that Watson arrested him; if so, Question IB asked if Watson had proved by a preponderance of the evidence that he had probable cause to arrest Daniel; and, if so, Question 1C asked the jury to specify for which offense or offenses probable cause existed to arrest Daniel. The jury answered Question 1A “yes”; Question IB “yes”; and Question 1C by checking off, from a list of offenses, that of “attempted assault in the third degree.” Accordingly judgment entered dismissing Daniel’s claim against Watson for unlawful arrest. 3. Discussion In finding that Watson arrested Daniel in the station house, the jury chose to believe the Ricciutis and disbelieved the testimony of Watson, Lopez, and Wheeler on that particular point. That evaluation of credibility contrasts with Alfred’s claim for assault against Watson, where the jury believed Watson and disbelieved the testimony of the Ricciutis. On this motion, plaintiffs argue that the jury’s rejection of the defendants’ account of Daniel’s arrest brands Watson, Lopez and Wheeler as unworthy of belief or perjurers in everything else that they said, so that plaintiffs are entitled to a new trial on all their claims. There is no substance to this argument. Defendants could urge with equal force that, because the jury disbelieved the Ricciutis’ account of the assault on Alfred, they should be disbelieved in everything else that they said. Neither extreme would be justified. The jury did no less, but no more, than exercise its traditional option to believe parts of a witness’s testimony and disbelieve other parts, thereby declining to apply what one court has called “the always treacherous maxim falsus in uno, falsus in omnibus.” Phillips v. Crown Central Petroleum Corp., 556 F.2d 702, 705 (4th Cir.1977). I see no reason to reject the jury’s assessment of the witnesses’ credibility on the particular issue of who arrested Daniel. Presumably Watson, Lopez, and Wheeler were not gratified by the jury’s finding that Watson arrested Daniel, despite their denials that he did so; but had those defendants challenged that finding as against the weight of the evidence, they would have enjoyed no more success than the plaintiffs have in challenging the jury’s finding that Alfred assaulted Watson, and not the other way around. So plaintiffs’ motion for a new trial on this claim comes down to whether Watson had probable cause .to arrest Daniel. Plaintiffs stress that Watson did not articulate any reasons why he arrested Daniel, and of course that is true, since Watson denied that he arrested him at all. But Watson’s stated reason for arresting Daniel is found in Daniel’s description of the incident, which the jury clearly accepted. According to Daniel, Watson said that he was arresting him for “assault.” In those circumstances, the Special Verdict Form, without objection from any party, asked the jury to consider whether Watson had probable cause to arrest Daniel for one or more of the following offenses: assault in the second degree; assault in the third degree; attempted assault in the second degree; attempted assault in the third degree; and aggravated harassment in the second degree. As noted, the jury specified attempted assault in the third degree. I must ask whether that verdict is legally permissible. Plaintiffs say it is not, and for two reasons: on the trial evidence, the verdict was against the weight of the evidence or, in the alternative, erroneous as a matter of law. These contentions require us to return to the street outside Yankee Stadium, and consider again the altercation between Alfred Ricciuti and Harlise Watson, this time focusing upon whether and to what extent Daniel Ricciuti participated in it. Plaintiffs’ motion papers accurately summarize the Ricciutis’ testimony as being that “Daniel said nothing, did nothing and never touched Watson at all during the incident.” The picture they painted was one of Daniel rooted to the spot in silent terror. Watson’s account was that Daniel made contact with him, in an attempt to prevent Watson from defending himself against Alfred. Thus Watson testified: “we [Alfred and Watson] exchanged a couple of punches, the other one [Daniel] tried to hold my arm back”; “as I attempted to swing at one gentleman [Alfred], the gentleman [Daniel] grabbed my arm in an attempt to stop me from defending myself,” grabbing Watson’s left arm (his punching arm) “below the elbow”; Daniel’s “holding my arm trying to get a grasp on my arm” while Watson was swinging his arm may have caused Watson’s gun to fall to the ground. Plaintiffs’ examination of Watson on this point made it clear that Daniel’s participation in the altercation was ineffectual. Thus Watson testified that “Daniel couldn’t get a grip” on his arm, he “didn’t really hold it”; while Daniel “tried to grab it,” he “never really had a grip on my arm,” and only touched it “for a couple of seconds.” While the day after the incident Watson signed a criminal complaint stating that “Daniel Ricciuti held your deponent’s arm as defendant Alfred Ricciuti punched your deponent in the face repeatedly,” he acknowledged during his trial testimony that Daniel “didn’t get hold of me.” Daniel failed in his effort to hold Watson’s arm while Alfred was punching Watson “only because I wouldn’t let him get a firm grasp”; Daniel failed in his effort to hold Watson’s arm during that period “because I wouldn’t let him.” Daniel’s conduct, Watson testified, prompted Watson. to identify Daniel to Wheeler at the station house as “the other gentleman that participated in the assault,” when Daniel “held my arm” and “tried to” grab Watson to “prevent me from defending myself.” Watson testified, in sum, that as Alfred was punching him, Daniel tried to “grab” or “hold” the arm Watson was using to fight back in an effort to prevent Watson from defending himself, but Watson was able to shake Daniel off. The jury was entitled to accept Watson’s testimony. Indeed, it is clear from their verdict that they did so. Moreover, this testimony justifies the jury’s verdict that probable cause existed to arrest Daniel for attempted assault in the third degree. Their specification of that offense demonstrates the care with which the jury, having been instructed on the elements of all the offenses, weighed the evidence. Assault in the second degree, either the substantive offense or an attempt, would not have been viable because of the statutory definition of “serious physical injury,” an element of that crime. But the crime of attempted assault in the third degree was made out by the facts as described in Watson’s testimony, under the instructions that without objection I gave to the jury. I will not direct a new trial of Daniel’s claim against Watson for unlawful arrest. The legality of Watson’s arrest of Daniel also justifies the jury’s refusal to reach Daniel’s claims against Lopez and Wheeler for failing to intercede in that arrest. D. Alfred’s and Daniel’s Claims Against Wheeler for Malicious Prosecution Alfred and Daniel Ricciuti were each charged with assault in the second degree and aggravated harassment in the second degree. Those charges were ultimately dismissed. Both plaintiffs asserted claims against Wheeler for malicious prosecution with respect to these two charges. The jury found that both plaintiffs had failed to prove either claim. Specifically, plaintiffs were charged with violating N.Y.Penal L. § 120.05(1), which provides that a person is guilty of assault in the second degree when “[w]ith intent to cause serious physical injury to another person, he causes such injury to such person or to a third person.” “Serious physical injury” is defined as “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.” N.Y.Penal L. § 10.00(10). Plaintiffs were also charged with violating N.Y.Penal L. § 240.30(3), which provides that a person is guilty of aggravated harassment in the second degree when “with intent to harass, annoy, threaten or alarm another person, he ... [sjtrikes, shoves, kicks, or otherwise subjects another person to physical contact, or attempts to do the same because of the race, color, religion or national origin of such person.” To prevail on a claim of malicious prosecution, a plaintiff must prove each of these four elements: “(1) the defendant initiated a prosecution against plaintiff, (2) without probable cause to believe the proceeding can succeed, (3) the proceeding was begun with malice and (4) the matter terminated in plaintiffs favor.” Ricciuti II, 124 F.3d at 130. In the case at bar, it was undisputed that both charges against plaintiffs were terminated in their favor, thereby satisfying the fourth element. It was also undisputed that Wheeler initiated the assault in the second degree prosecution against plaintiffs, since it was he who specified that charge in the documentation forwarded to the office of the Bronx district attorney. Accordingly, with respect to plaintiffs’ claims against Wheeler for maliciously prosecuting them for assault in the second degree, the trial turned upon the second and third elements: whether Wheeler had probable cause to believe that a prosecution for assault in the second degree could succeed; and whether he began that prosecution with malice. With respect to the charge of aggravated harassment in the second degree, the first element was in dispute, as well as the second and third. That is because this charge was added by the assistant district attorney who received the file from the station house and processed the case. I will discuss the two charges separately- 1. Assault in the Second Degree Plaintiffs clearly established the second element of their malicious prosecution claim for assault in the second degree. Wheeler did not have probable cause to believe that a prosecution on that charge could succeed. As noted, the charge required the existence of a physical injury so serious that it “creates a substantial risk of death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.” N.Y.Penal L. § 10.00(10). Watson’s most serious injury was a cut under his eye. A reasonable jury could not find that injury sufficiently serious to meet the statutory definition. The case therefore turns upon the third element, whether Wheeler began the proceeding “with malice.” The Second Circuit stated in Ricciuti II, 124 F.3d at 131, that “lack of probable cause generally raises an inference of malice sufficient to withstand summary judgment,” citing Lowth v. Town of Cheektowaga, 82 F.3d 563 (2d Cir.1996) for that proposition. In Lowth the Second Circuit, reversing summary judgment in the defendant police officer’s favor on plaintiffs claim of malicious prosecution for resisting arrest, stated that “[i]n most cases, the lack of probable cause — while not dispositive' — tends to show that the accuser did not believe in the guilt of the accused, and malice may be inferred from the lack of probable cause.” Id. at 573 (citation and internal quotation marks omitted). “Under New York law, malice does not have to be actual spite or hatred, but means only that the defendant must have commenced the criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served.” Id. (citation and internal quotation marks omitted). The Lowth court concluded: Given that Officer Grant lacked probable cause to charge Mrs. Lowth with resisting arrest, and given also that it is certainly not implausible that Officer Grant might have been acting out of anger for what Mrs. Lowth put him through, we think that enough evidence of malice, as defined by New York, can be inferred to survive a motion for summary judgment. Id. In the case at bar, the jury rejected plaintiffs’ claims for malicious prosecution after full plenary trial, during which Wheeler gave an explanation for his second-degree assault charges. On that issue, Wheeler testified in response to questions by defense counsel: Q: Do you recall testimony earlier today about the time that you first saw Officer Watson and viewed his injury? A: Yes, sir, I do. Q: And at the time did you classify it as serious physical injury? A. Yes, sir. He had an eye injury, and I consider any eye injury to be serious, sir. Q: And at a later time, did you consider what the appropriate charges were? A: Yes, sir, I did. Q: And what charge did you find to be appropriate with respect to the situation involving the plaintiffs in this case? A: Assault second degree, sir. Q: And could you explain your reasoning to the Court and jury? A: Well, sir, Mr. Watson had sustained an eye injury. It has the potential for detaching the retina, cornea damage, permanent loss of vision. We returned him — he came back from Montefiore Hospital and the bandage they applied to his wound was still bleeding. And I believe we heard testimony that when he went back the second time, they removed glass from that wound. And in my mind, that constitutes serious physical injury. 4122 Tr. 691-92. Wheeler’s counsel argued to the jury in summation: Captain Wheeler has some experience with how individuals are hurt in a physical altercation. He told us that recruits at the police academy were told not to strike people in the eyes because that can cause a very serious injury. Additionally, as some of the jurors may appreciate better than I, a blow to the eye to someone that is wearing glasses is even more significant. Captain Wheeler has told us that he has some paramedic training and some experience in evaluating people who have been injured. He told us that, even today he believes that he had reasonable cause, probable cause, to charge the crime of serious physical injury. It makes no difference that two or three or four months later that the person was lucky. The decision that has to be made has to be made before the prisoner is sent to central booking. In this case, we know that Mr. Watson went to Montef-iore Hospital because the wound was continuing to bleed, and there is the suggestion that the wound was actually getting larger. I think that I can argue to you that Captain Wheeler’s decision is appropriate, but the law doesn’t even require that. The law only requires that he didn’t make those charges on a bad faith basis. And you, ladies and gentlemen, have to wonder why, out of all the people that get arrested a